People v. Lopez - Case Law

2018 IL App (1st) 153331

SIXTH DIVISION
October 5, 2018

No. 1-15-3331

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 14 CR 14375
)
JOSE LOPEZ, )
) Honorable Mary Colleen Roberts,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Connors and Harris concurred in the judgment and opinion.

OPINION

¶1 Defendant Jose Lopez was charged with driving while his license was suspended

(DWLS) in violation of section 6-303(a) of the Illinois Vehicle Code (625 ILCS 5/6-303(a)

(West 2014)). Defendant filed a motion to quash arrest and suppress evidence, alleging that the

traffic stop that led to his arrest was illegal. After an evidentiary hearing, the circuit court denied

defendant’s motion. Following a stipulated bench trial, defendant was convicted of DWLS and

sentenced to 24 months of probation and 30 days’ imprisonment. On appeal, defendant contends

that the court erred in denying his motion to quash arrest and suppress evidence. Specifically, he
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argues that the anonymous tip relied upon by the arresting officer was unreliable and inadequate

to establish reasonable suspicion of drunk driving. We reverse.

¶2 BACKGROUND

¶3 Defendant was charged with DWLS under section 6-303(a) of the Illinois Vehicle Code

(id.), stemming from a traffic stop on August 3, 2014. Defendant moved to quash arrest and

suppress evidence, alleging that the traffic stop violated his right to be free from unreasonable

seizures. In response, the State filed a motion to strike defendant’s motion. The State argued that,

even if the arresting officer illegally seized defendant, the identity of a defendant is not evidence

that can be suppressed. The circuit court denied the State’s motion to strike, and the case

proceeded to an evidentiary hearing on defendant’s motion. The only witness who testified was

Chicago police officer Reyes Martinez.

¶4 Officer Martinez testified that at around 8:00 p.m. on August 3, 2014, he was on duty

near the intersection of Pulaski Road and 50th Street in Chicago. He received a message from

another police vehicle that there “was a DUI driver heading outbound on Pulaski from 43rd

Street.” The vehicle was described as a black Expedition with a partial license plate number NZ

1. The driver of the Expedition was described as “a male Hispanic.” Officer Martinez did not

know the identity of the person who reported the alleged drunk driver, nor did he know how

much time elapsed between the initial report and the eventual traffic stop. 1

¶5 Officer Martinez then spotted a black Expedition, with a license plate starting with N 211

driving southbound on Pulaski Road. Officer Martinez pulled up behind the Expedition at the

intersection of Pulaski Road and 50th Street. He did not observe any traffic violations or

1
Although he admitted that he did not know when the tip originally came in, Officer Martinez
“guessed” that two minutes passed between the time the tip was reported and the time he identified the
vehicle. This guess was based on the time it would take a car to travel from 43rd Street to 50th Street.
Obviously, this statement has no value for evaluating the accuracy of the tip because the guess itself
assumes that the tip was accurate.

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improper lane usage. After the light turned green, Officer Martinez activated his emergency

lights, and the Expedition immediately pulled over. He did not have a warrant.

¶6 When he approached the Expedition, Officer Martinez saw that defendant was an

“occupant” of the vehicle. Defendant handed Officer Martinez his state identification card. By

“reading through that state ID,” Officer Martinez determined that defendant’s license was not

valid. He then arrested defendant for driving without a valid license. Officer Martinez did not

conduct any breath test or field sobriety tests on defendant.

¶7 The circuit court denied defendant’s motion to quash arrest and suppress evidence,

finding that Officer Martinez “had reasonable suspicion to conduct an investigatory stop.”

Defendant filed a motion to reconsider, which the court denied. The case proceeded to a bench

trial in which the parties stipulated that Officer Martinez would testify as he had in the

evidentiary hearing. The State presented a copy of defendant’s driving abstract as evidence that

his license was suspended at the time of the traffic stop. The court found defendant guilty and

sentenced him to 24 months’ probation and 30 days’ imprisonment. This appeal followed.

¶8 ANALYSIS

¶9 Defendant contends that the circuit court erred in denying his motion to quash arrest and

suppress evidence because Officer Martinez lacked reasonable, articulable suspicion of criminal

activity to perform the traffic stop.

¶ 10 When a trial court’s ruling on a motion to suppress involves factual determinations or

credibility assessments, the court’s findings will not be disturbed on review unless they are

against the manifest weight of the evidence. People v. Grant, 2013 IL 112734, ¶ 12. However,

we review de novo the court’s ultimate legal ruling to grant or deny the motion. Id.

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¶ 11 To prevail on a motion to suppress, “[t]he defendant must make a prima facie case that

the police acted without a warrant and that he was doing nothing unusual (i.e., indicative of

criminal activity) to justify the intrusion by the police at the time of the stop or arrest. Once the

defendant has made this showing, the burden of going forward with the evidence to justify the

intrusion shifts to the State.” People v. Ertl, 292 Ill. App. 3d 863, 868 (1997). There is no dispute

here that defendant made a prima facie case that Officer Martinez acted without a warrant and

that defendant did nothing unusual, such as commit any moving violations, to justify the stop.

The State, therefore, had the burden of justifying the traffic stop.

¶ 12 Both the fourth amendment to the United States Constitution, which applies to the states

via the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961)), and article I, section 6, of

the Illinois Constitution of 1970, guarantee the right to be free from unreasonable searches and

seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Police-citizen encounters are

divided into three tiers: arrests, which must be supported by probable cause; investigatory or

Terry stops, which must be supported by reasonable, articulable, suspicion of criminal activity;

and encounters that involve no coercion or detention and thus do not implicate constitutional

rights. See Grant, 2013 IL 112734, ¶ 11; People v. Hackett, 2012 IL 111781, ¶ 20; People v.

Hopkins, 235 Ill. 2d 453, 471 (2009).

¶ 13 A police officer may conduct a brief investigatory stop of a person if the officer can point

to specific and articulable facts that, taken together with rational inferences from those facts,

reasonably warrant the stop. Hackett, 2012 IL 111781, ¶ 20; 725 ILCS 5/107-14, 108-1.01 (West

2014). We judge the stopping officer’s conduct by an objective standard, considering whether

the facts available to the officer at the moment of the stop justify the action taken. Hackett, 2012

IL 111781, ¶ 29. Vehicle or traffic stops are treated as Terry stops, so they are proper when the

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stopping officer has a reasonable and articulable suspicion that a traffic violation or crime has

occurred. Id. ¶ 20.

¶ 14 When analyzing whether an informant’s tip is sufficient to justify an investigatory stop,

the court first assesses the reliability of the tip. Navarette v. California, 572 U.S. ___, ___, 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].” Id. at ___, 134 S. Ct. at 1690.

¶ 15 This court has had many opportunities to review the question of how reliable and detailed

an informant’s tip about an allegedly drunk driver must be to justify an investigatory stop. See,

e.g., Village of Gurnee v. Gross, 174 Ill. App. 3d 66, 69 (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 “creat[ing] 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. Because Navarette’s issue is identical and its facts

extremely similar to those this case, we review that case at length.

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¶ 16 In Navarette, the police received a 911 call reporting a pickup truck of a specific make,

model, color, and license plate number that allegedly “[r]an the reporting party off the roadway.”

(Internal quotation marks omitted.) Navarette, 572 U.S. at ___, 134 S. Ct. at 1687. The report

indicated that the truck was last seen heading southbound around a specific mile marker on

Highway 1, approximately five minutes before the report was relayed to the eventual arresting

officers. Id. at ___, 134 S. Ct. at 1686-87. Approximately 13 minutes later, a police officer

observed a truck matching the description from the report and followed it for 5 minutes before

pulling it over. Id. at ___, 134 S. Ct. at 1687. During the five minutes that the officer followed

the truck, he did not observe any moving violations or “additional suspicious conduct.” Id. at

___, 134 S. Ct. at 1691. As the police approached the stopped truck, they smelled marijuana. Id.

at ___, 134 S. Ct. at 1687. Upon searching the truck, the police found 30 pounds of marijuana.

Id. at ___, 134 S. Ct. at 1687.

¶ 17 The Navarette defendants argued that the police officer lacked reasonable suspicion to

conduct the traffic stop. Id. at ___, 134 S. Ct. at 1687. Although the tip was anonymous 2 and the

police officer did not observe any suspicious or illegal behavior, the Court found that there was

adequate reasonable suspicion for the officer to conduct an investigatory stop. Id. at ___, 134 S.

Ct. at 1691-92.

¶ 18 The Court made three observations in analyzing the reliability of the tip. First, “[b]y

reporting that she had been run off the road by a specific vehicle *** the caller necessarily

claimed eyewitness knowledge of the alleged dangerous driving.” Id. at ___, 134 S. Ct. at 1689.

A firsthand basis for knowledge of the alleged wrongdoing lent considerable weight to the

reliability of the tip. Id. at ___, 134 S. Ct. at 1689. Second, the contemporaneous nature of the tip

2
Although it appears the tipster did give her name to the 911 dispatcher, neither she nor the
dispatcher testified. Navarette, 572 U.S. at ___, 134 S. Ct. at 1687 n.1. Consequently, the 911 recording
was not entered into evidence, and the Court treated the tip as anonymous. Id.

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made it more reliable. Id. at ___, 134 S. Ct. at 1689. The timeline of events and distance between

the alleged act of reckless driving and the location where the police first identified the vehicle

created the inference that the tip was made based on contemporary knowledge. Id. at ___, 134 S.

Ct. at 1689. Finally, the Court found that the very nature of the 911 emergency system lent some

support to the reliability of the tip. Id. at ___, 134 S. Ct. at 1689. Because 911 calls are recorded,

allowing callers to be identified by voice, and 911 callers can be located geographically and by

telephone number, the Court concluded that “anonymous” tips submitted by calling 911 are more

reliable than other anonymous tips because “a false tipster would think twice before using such a

system.” Id. at ___, 134 S. Ct. at 1689-90.

¶ 19 Having found that the tip was reliable, the Court then analyzed whether the tip “created

reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated

episode of past recklessness.” Id. at ___, 134 S. Ct. at 1690. The Court explained that certain

dangerous behaviors are recognized as indicia of drunk driving, such as swerving or “weaving all

over the roadway.” (Internal quotation marks omitted.) Id. at ___, 134 S. Ct. at 1690. A tip

alleging that sort of behavior, the Court reasoned, “generally would justify a traffic stop on

suspicion of drunk driving.” Id. at ___, 134 S. Ct. at 1691. Critically, the tipster in Navarette

“reported more than a minor traffic infraction and more than a conclusory allegation of drunk or

reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct:

running another car off the highway.” Id. at ___, 134 S. Ct. at 1691.

¶ 20 This case is very similar. As in Navarette, this case involves an anonymous tip including

details such as the car model, color, location, and direction. Both tips also included a license

plate number, albeit a partial one in this case. When the police responded in both cases, they

identified the subject vehicle travelling on the indicated road, in the indicated direction. And in

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both cases, the police initiated an investigatory stop without observing any violations or

suspicious activity.

¶ 21 These cases differ, however, in both the reliability and sufficiency of the tip. The tip in

this case lacks some of the indicia of reliability found in Navarette. The Navarette tipster

specifically alleged that she was an eyewitness to the driver’s dangerous conduct. Id. at ___, 134

S. Ct. at 1689. In this case, Officer Martinez testified that the tip was about “a DUI driver,” with

no specific allegations as to what the tipster witnessed or had particular knowledge of to

conclude that the driver of the black Expedition was intoxicated. Instead of specific allegations

of wrongdoing and a basis for the tipster’s knowledge of the wrongdoing, the tip contained

nothing more than a conclusory allegation of drunk driving and no alleged basis for that

knowledge.

¶ 22 Additionally, nothing in the record indicates the source of the tip at issue here. While the

tip in Navarette was made through the 911 emergency system and was therefore somewhat more

likely to be reliable than otherwise, there is no evidence here that the tipster contacted the police

through an emergency number. The State asks us to assume that the tipster was a concerned

citizen and to give more weight to the reliability of the tip for that reason. But where there is no

evidence that the tipster gave a name or contacted the police through an emergency number, “the

tip must be treated as an anonymous one, and its reliability hinges on the existence of

corroborative details observed by the police.” People v. Smulik, 2012 IL App (2d) 110110,

¶ 8.

¶ 23 In this case, the details corroborated by Officer Martinez included the general location,

direction, make, and color of the vehicle. 3 The partial license plate number NZ1 was also

3
The detail that the driver was “a male Hispanic” was not corroborated until after the stop. Officer
Martinez did not testify that he saw defendant at all until after he initiated the stop. “Only the facts known

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corroborated; a mistake in identifying a “2” as a “Z” is understandable, particularly if the

informant identified the plate while the vehicle was moving. See People v. Henderson, 266 Ill.

App. 3d 882, 887 (1994) (holding that a “U” confused with an “L” in a license plate number does

not remove probable cause). These details are adequate to establish that the police have

identified the person whom the tipster meant to accuse. “Such a tip, however, does not show that

the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue

requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a

determinate person.” Florida v. J.L., 529 U.S. 266, 272 (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).

¶ 24 Navarette was a “close case”, but the Court found that, under the totality of the

circumstances, the tip had sufficient indicia of reliability. Navarette, 572 U.S. at ___, 134 S. Ct.

at 1692. Because the indicia of reliability in this case fall well below those in that case,

particularly with regard to the source of the tipster’s alleged knowledge of an ongoing offense,

we find that the tip was not reliable and therefore could not justify the traffic stop.

¶ 25 Even if we had found that the tip was reliable, it would still have been insufficient to

justify the traffic stop. That is because “a reliable tip will justify an investigative stop only if it

creates reasonable suspicion that ‘criminal activity may be afoot.’ ” Id. at ___, 134 S. Ct. at 1690

(quoting 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. Shafer, 372 Ill. App. 3d at 1050. As the Eighth Circuit

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).

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aptly put it, “[a] law enforcement officer’s mere hunch does not amount to reasonable suspicion

[citations]; a fortiori, neither does a private citizen’s.” United States v. Wheat, 278 F.3d 722, 732

(8th Cir. 2001).

¶ 26 In Navarette, the tipster “reported more than a minor traffic infraction and more than a

conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous

result of the driver’s conduct: running another car off the highway.” Navarette, 572 U.S. at ___,

134 S. Ct. at 1691. The cases relied upon by the State likewise involved tips with observations of

specific conduct or violations. See Shafer, 372 Ill. App. 3d at 1047 (restaurant employee alleged

driver “ ‘was causing a disturbance and was intoxicated’ ” at a restaurant’s drive-thru); People v.

DiPace, 354 Ill. App. 3d 104, 109 (2004) (eyewitnesses gave “a specific description of the

erratic driving they had witnessed”); Wheat, 278 F.3d at 732 (“anonymous caller specifically

alleged that he had personally observed several different traffic violations involving erratic

driving”). In the cases relied upon by defendant, that level of specific detail is crucially absent.

See Minx, 352 Ill. App. 3d at 222 (“although the citizen-informant had an indicia [sic] of

reliability, because of the lack of detail provided, [the police officer] lacked reasonable suspicion

at the time he instituted the investigatory stop”); City of Lake Forest v. Dugan, 206 Ill. App. 3d

552, 555 (1990) (“officer did not testify to any specific facts which had been reported to him or

to the Highwood police department which might support the conclusion about the driver [being

intoxicated]”).

¶ 27 The facts of Dugan are particularly similar to those in this case. The tip in that case

described the driver as an intoxicated white man and the car as “a white Honda bearing Illinois

license plate number OR 6920,” leaving a specified gas station. Dugan, 206 Ill. App. 3d at 554.

The level of the detail in this case is virtually identical: the make, color, (partial) license plate

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number, and general location of the car, coupled with the race and gender of the driver. Those

details, however, are entirely innocent. The critical allegation that the driver was “intoxicated”

was neither specific nor corroborated. Here, the alleged illegal conduct is equally conclusory: “a

DUI driver.” There is no allegation of specific behavior or interactions that could have led to the

conclusion that the driver was intoxicated. Officer Martinez did not observe any violations or

even suspicious behavior by defendant. Without any specific allegation or indication of

wrongdoing, Officer Martinez could not have had a reasonable suspicion that defendant was

engaged in an ongoing crime. Id. at 555-56 (“The fact that [the police officer] observed a white

Honda, license number OR 6920, in the area specified by the informant did not sufficiently

corroborate the complaint to justify the stop [citations], because the crucial part of the complaint

was that the driver was intoxicated.”).

¶ 28 Because the tip was neither reliable nor sufficiently detailed to justify a traffic stop, we

hold that Officer Martinez violated defendant’s constitutional right to be free from unreasonable

seizure.

¶ 29 Our supreme court has held that the “fruit of the poisonous tree” doctrine “is an

outgrowth of the fourth amendment exclusionary rule.” People v. Henderson, 2013 IL 114040,

¶ 33; 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

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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).

¶ 30 Because Officer Martinez lacked reasonable suspicion to perform the traffic stop, that

stop is a “poisonous tree,” and the circuit court should have suppressed any evidence obtained

from that stop. The State argues, however, that (1) Officer Martinez’s actions were not flagrant

or culpable enough to justify exclusion and (2) no suppressible evidence was obtained as a result

of the traffic stop. We address these arguments in turn.

¶ 31 In arguing that the illegal stop was not so flagrant that the exclusionary rule should be

applied, the State relies primarily on Herring v. United States, 555 U.S. 135 (2009), and other

federal cases. However, those cases analyze the federal exclusionary rule, which is interpreted

more narrowly than its Illinois counterpart. People v. Gaytan, 2015 IL 116223, ¶ 52. In Herring,

the police made an arrest pursuant to a warrant that, unbeknownst to the arresting officers, had

been recalled. Herring, 555 U.S. at 137-38. The Court held that the application of the

exclusionary rule would have minimal deterrent effect in such a case because the arresting

officers’ conduct was not sufficiently deliberate. Id. at 144-45.

¶ 32 This court had occasion to distinguish Herring in the case of People v. Estrada, 394 Ill.

App. 3d 611 (2009). In that case, the State contended that the exclusionary rule should not be

applied to suppress cocaine seized from the defendant’s care during an unlawful traffic stop. Id.

at 626. We held that because the police officer in Estrada made the decision to conduct an illegal

traffic stop without reasonable suspicion, the exclusionary rule should be applied as a deterrent

to future investigatory stops without reasonable suspicion. Id. at 628. The traffic stop in this case

is more like that made in Estrada than the stop in Herring. Officer Martinez neither had probable

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cause nor relied in good faith on the sort of record-keeping error present in Herring. The

exclusionary rule applies in this case.

¶ 33 Next, the State argues that, even if the exclusionary rule would otherwise be applicable in

this case, the stop did not result in any suppressible evidence because identity-related evidence is

never suppressible. For this proposition, the State relies on Immigration & Naturalization Service

v. Lopez-Mendoza, 468 U.S. 1032 (1984). Specifically, the State relies on the following language

in Lopez-Mendoza:

“The ‘body’ or identity of a defendant or respondent in a criminal or civil

proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is

conceded that an unlawful arrest, search, or interrogation occurred.” Id. at 1039.

¶ 34 The Supreme Court made this statement in the context of addressing a challenge by the

defendant “to the fact that he had been summoned to a deportation hearing following an unlawful

arrest.” Id. at 1040. Lopez-Mendoza had “entered no objection to the evidence offered against

him.” Id. The Court cited six cases in support of its statement on the “ ‘body’ or identity” of the

defendant, all of which considered whether jurisdiction over a defendant or seized res properly

existed. Id. at 1039-40 (citing Gerstein v. Pugh, 420 U.S. 103 (1975); Frisbie v. Collins, 342

U.S. 519 (1952); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923); United States v.

Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293 (8th Cir. 1982); United States v.

One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351 (9th Cir. 1974); United States v. One

1965 Buick, 397 F.2d 782 (6th Cir. 1968)). Rather than creating a new class of evidence exempt

from suppression, the “body or identity” language in Lopez-Mendoza simply affirms the

established principle that an illegal arrest does not necessarily bar prosecution for a crime.

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¶ 35 This reading of Lopez-Mendoza is supported by the fact that the Court distinguished

Lopez-Mendoza’s objections from those raised in the consolidated case of Sandoval-Sanchez:

“Respondent Sandoval-Sanchez has a more substantial claim. He objected not to his compelled

presence at a deportation proceeding, but to evidence offered at that proceeding.” Lopez-

Mendoza, 468 U.S. at 1040. Rather than reject Sandoval-Sanchez’s claims on the same grounds

as those of Lopez-Mendoza, the Court held that exclusionary rule does not apply to civil

deportation proceedings. Id. at 1050.

¶ 36 Although the application of the “body or identity” language in Lopez-Mendoza appears to

be one of first impression in Illinois, the Florida Supreme Court addressed the issue thoroughly

and persuasively. In State v. Perkins, 760 So. 2d 85, 86-89 (Fla. 2000), the Florida Supreme

Court held that Lopez-Mendoza did not bar the exclusion of a police officer’s post-stop

observations of the defendant as driver of the vehicle. In that case, the defendant was stopped

illegally by the police, who then learned that his license was suspended. Id. at 85. The State

conceded the illegality of the stop but argued that Lopez-Mendoza required that the trial court

allow evidence obtained from the stop. Id. at 85-86. The Florida Supreme Court held that Lopez-

Mendoza did not stand for the proposition that identity-related evidence was per se admissible

over a fourth amendment objection. Id. at 87. The court noted that the cases cited in Lopez-

Mendoza involved jurisdictional rather than evidentiary objections. Id. Further, the court

observed that Lopez-Mendoza’s objection to jurisdiction was treated differently by the Supreme

Court than the evidentiary objection of Sandoval-Sanchez. Id. After finding that Lopez-Mendoza

does not create a new category of unsuppressible evidence, the Florida Supreme Court held that

“the evidence required to prosecute the charge of driving with a suspended license came directly

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from the exploitation of the unlawful stop” and that, therefore, the “officer’s post-stop

observation of the defendant behind the wheel must be suppressed.” Id. at 88-89.

¶ 37 We find this analysis persuasive and, like the Florida Supreme Court, we hold that Lopez

Mendoza’s “body or identity” language applies only to personal jurisdiction, not to the

suppression of identifying evidence. For the same reasons as those presented in Perkins, Officer

Martinez’s post-stop observation that defendant was driving the black Expedition must be

suppressed. Because that observation was not made until “after [Officer Martinez] pulled over

the vehicle,” it is in no way attenuated from the illegal stop and is therefore suppressible. See

Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (holding that evidence need not be

suppressed if it was obtained “by means sufficiently distinguishable to be purged of the primary

taint” of illegality (internal quotation marks omitted)). Officer Martinez did not observe

defendant driving or in control of a motor vehicle until immediately after he performed an illegal

traffic stop. Therefore, the circuit court erred in denying defendant’s motion to quash arrest and

suppress evidence.

¶ 38 One of the elements of DWLS is that the accused “drives or is in actual physical control

of a motor vehicle on any highway of this State.” 625 ILCS 5/6-303(a) (West 2014). The only

evidence presented that defendant was driving or in actual physical control of a motor vehicle

was Officer Martinez’s testimony that he observed the defendant to be an “occupant of [the]

vehicle.” 4 Because defendant could not have been convicted without the evidence that should

have been suppressed, we reverse his conviction. See People v. Green, 358 Ill. App. 3d 456, 464

(2005).

4
We note that Officer Martinez did not explicitly testify that defendant was driving or operating a
motor vehicle. He did not testify that he observed defendant while driving, or even that he observed
defendant in the driver’s seat of the stopped Expedition. Rather, he testified that he “[found] that there
was an occupant of [the] vehicle,” and that the “occupant of that vehicle was Mr. Jose Lopez.”

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¶ 39 CONCLUSION

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

¶ 41 Reversed.