In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1840
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
B ENJAMIN G ARCIA-G ARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 CR 30041—Jeanne E. Scott, Judge.
A RGUED JANUARY 22, 2010—D ECIDED JANUARY 25, 2011
Before R IPPLE and R OVNER, Circuit Judges, and ST. E VE,
District Judge.
R OVNER, Circuit Judge. Benjamin Garcia-Garcia was
convicted of illegal re-entry into the United States after
having been deported, in violation of 8 U.S.C. § 1326(a),
and knowingly transporting illegal aliens, in violation of
The Honorable Amy J. St. Eve, District Judge for the
Northern District of Illinois, is sitting by designation.
2 No. 09-1840
8 U.S.C. § 1342(a)(1). He challenges the traffic stop
which led to his arrest, contending that it was not sup-
ported by probable cause and was therefore in viola-
tion of his rights under the Fourth Amendment. We affirm.
I.
In the early evening of April 15, 2008, State Trooper
Dustin Weiss was patrolling Interstate 55 near Spring-
field, Illinois. Trooper Weiss was parked on the median
of the highway facing northbound traffic when he
noticed a red Ford minivan traveling more slowly than
the vehicles around it, under the posted speed limit of
sixty-five miles per hour. As the van passed him, the
trooper saw an air freshener hanging from the rearview
mirror. The air freshener was tree-shaped, approxi-
mately five inches by three inches at its widest points,
and bright pink and white in color. Photos of the van
taken at the scene reveal that the air freshener was
easily discernable from outside the van. A baby-sized
sandal was suspended below the air freshener, and the
whole assembly stretched from the mirror to just short
of the dashboard.1 Illinois law prohibits a driver from
1
Trooper Weiss testified that he did not see the sandal
until after he stopped the van. In the black-and-white photos
of the van that appear in the record, the sandal appears to be
similar in size to the air freshener but blends in with the
background. Because Weiss testified that he did not see the
sandal before effecting the stop, the district court did not
(continued...)
No. 09-1840 3
operating a vehicle “with any objects placed or sus-
pended between the driver and the front windshield,
rear window, side wings or side windows immediately
adjacent to each side of the driver which materially ob-
structs [sic] the driver’s view.” 625 ILCS 5/12-503(c).2
Believing the van to be in violation of that statute because
of the air freshener, Weiss initiated a traffic stop. At a
hearing to suppress the evidence that was the fruit of
this stop, Weiss candidly admitted that he does not stop
all vehicles with air fresheners but chose to pull over
this van because of its slow speed, because the driver did
not look at him as he passed, and because the driver
appeared stiff, rigid and nervous.3
1
(...continued)
consider it in determining whether probable cause existed
to stop the van; we will follow suit.
2
The title of Section 12-503 is “Windshields must be unob-
structed and equipped with wipers.”
3
Driving carefully and within lawful parameters does not
generate reasonable suspicion or probable cause in the
ordinary case. See United States v. Ingrao, 897 F.2d 860, 865
(7th Cir. 1990). “The mere lawful operation of a motor
vehicle should not be considered suspicious activity absent
extraordinary contemporaneous events.” Id. That Garcia-Garcia
was driving within the speed limit would not, in and of
itself, justify the stop. Instead we analyze the case in terms of
whether the trooper reasonably believed that Garcia-Garcia
violated the law that prohibited material obstructions be-
tween the driver and the windshield.
4 No. 09-1840
The driver of the van was Benjamin Garcia-Garcia.
When Trooper Weiss asked him for identification, Garcia-
Garcia produced a Mexican identification card. Garcia-
Garcia spoke “broken” English, according to Weiss, and
the two had difficulty communicating. There were nine
passengers in the van, all Hispanic. A few of them
spoke enough English for Trooper Weiss to determine
that the driver did not have a valid driver’s license
and that all of the passengers were Mexican citizens
illegally present in the United States. Trooper Weiss
checked his computer for outstanding warrants and
criminal history for Garcia-Garcia. He explained to Garcia-
Garcia that he stopped the van because of the ob-
structed windshield. He issued to Garcia-Garcia a “Stop
Card and Written Warning,” (hereafter “Warning Ticket”),
containing the handwritten notation that the offense
was “12-503(c) OBSTRUCTED WINDSHIELD.” The
trooper also called his dispatcher and asked him to
contact Immigration and Customs Enforcement (“ICE”).
An ICE agent arrived and confirmed that the driver
and all of the passengers were present illegally in the
United States. The ten were then taken to the Spring-
field ICE office for questioning. After receiving Miranda
warnings, Garcia-Garcia waived his right to an at-
torney and agreed to answer questions. He admitted
driving the passengers from Phoenix, Arizona to Spring-
field, Illinois, where the van was stopped. He also told
ICE officials that he knew his passengers were aliens
who were present illegally in the United States. The
passengers similarly waived their rights and admitted
that they entered the United States without inspection.
No. 09-1840 5
The passengers had paid (or were going to pay) between
$1500 and $2000 each to be taken to destinations inside
the United States.
Garcia-Garcia was charged with being present without
permission in the United States after previously having
been deported, in violation of 8 U.S.C. § 1326(a), and
with knowingly transporting illegal aliens within the
United States by means of a motor vehicle, in violation
of 8 U.S.C. § 1324(a)(1). Garcia-Garcia moved to sup-
press all evidence and statements obtained as a result
of the traffic stop. The evidence Garcia-Garcia sought
to suppress included the van, the passengers deter-
mined to be illegal aliens, cash found in Garcia-Garcia’s
possession, and Trooper Weiss’ identification of Garcia-
Garcia as an illegal alien. At a hearing before a
magistrate judge, Trooper Weiss and Garcia-Garcia
were the only two witnesses to testify. Garcia-Garcia
argued before the magistrate and later in the district
court that Trooper Weiss could not have seen the small
air freshener from his vantage point given the speed at
which the van was traveling. He also contended that
Trooper Weiss could not reasonably have believed that
the small air freshener was a “material” obstruction.
The magistrate judge found Trooper Weiss to be
credible and rejected Garcia-Garcia’s version of events.
The magistrate judge found that Trooper Weiss saw the
air freshener as the van passed his squad car. The magis-
trate judge further found that nothing in the record
indicated Trooper Weiss was mistaken about the law,
and noted Illinois cases in which the court found that
an air freshener could constitute a material obstruction.
6 No. 09-1840
The magistrate therefore recommended that the district
court deny the motion to suppress. On de novo review,
the district court also concluded that Trooper Weiss
saw the air freshener and stopped the van based on his
belief that the obstruction violated Illinois law. The court
noted that the test for probable cause is an objective
analysis conducted from the view of the reasonable
officer under the circumstances at the time of the event.
The court found that a reasonable officer could have
concluded that the driver of the van committed a
traffic violation. The court noted that the air freshener
hung down in the driver’s line of vision, and that this
court had previously concluded that an air freshener
hanging from a rearview mirror could constitute a
material obstruction in violation of Illinois law. See
United States v. Smith, 80 F.3d 215, 219 (7th Cir. 1996). The
court therefore found the stop was adequately sup-
ported by probable cause. Garcia-Garcia then pled
guilty to both counts but retained his right to appeal
the court’s ruling on his suppression motion. The
court sentenced him to concurrent thirty-month terms
of imprisonment on each count, to be followed by three
years of supervised release. Garcia-Garcia appeals.
II.
On appeal, Garcia-Garcia abandons his claim that
Trooper Weiss did not observe the air freshener. He
argues only that no reasonable officer could have
believed that this air freshener constituted a material
obstruction, and that Trooper Weiss made a mistake of
No. 09-1840 7
law in believing that any obstruction of a windshield
would violate Illinois law when only a material obstruc-
tion is prohibited. If the trooper did not have probable
cause to believe that Garcia-Garcia violated the Illinois
statute on material obstructions, there were no other
legitimate reasons for the traffic stop, he argues, and any
evidence procured from the stop should be suppressed.
After oral argument in this appeal, Garcia-Garcia was
released from prison and deported to Mexico. As a
result, before addressing the substance of the case, we
must first consider whether the appeal is moot. United
States v. Larson, 417 F.3d 741, 747 (7th Cir. 2005). Al-
though his term of imprisonment is finished, Garcia-
Garcia remains on supervised release, which is a form
of custody. Larson, 417 F.3d at 747. Moreover, a de-
fendant’s subsequent deportation does not terminate
the period of supervised release. United States v. Akinyemi,
108 F.3d 777, 779 (7th Cir. 1997) (deportation does not
extinguish supervised release). The appeal is therefore
not moot. Larson, 417 F.3d at 747; United States v. LaShay,
417 F.3d 715, 716 n.1 (7th Cir. 2005). We proceed to
the merits.
In reviewing the district court’s denial of a motion to
suppress, we review questions of law de novo and
factual findings for clear error. United States v. Groves, 470
F.3d 311, 317-18 (7th Cir. 2006). See also United States
v. Cashman, 216 F.3d 582, 586 (7th Cir. 2000) (probable
cause determinations are reviewed de novo, deferring
to any subsidiary findings of historical fact that are
not clearly erroneous). Garcia-Garcia notes that
Trooper Weiss did not utter the word “materially” when
8 No. 09-1840
he testified that he stopped the van because he observed
the air freshener obstructing the driver’s view in viola-
tion of 625 ILCS 5/12-503(c). From that omission and
from the small size of the air freshener, Garcia-Garcia
contends that we must conclude that Trooper Weiss
was acting under a mistake of law, that the trooper
thought any obstruction violated the statute when in
fact only material obstructions are prohibited.
The prosecution bears the burden of proving by a
preponderance of the evidence that a warrantless stop is
supported by probable cause. United States v. Basinski,
226 F.3d 829, 833 (7th Cir. 2000). When a police officer
reasonably believes that a driver has committed even
a minor traffic offense, probable cause supports the
stop. Whren v. United States, 517 U.S. 806, 819 (1996); United
States v. Taylor, 596 F.3d 373, 376 (7th Cir.), cert. denied,
130 S.Ct. 3485 (2010); Cashman, 216 F.3d at 586. But when
a police officer mistakenly believes that the law pro-
hibits an act that is, in fact, perfectly legal, even a good
faith belief that the law has been violated will not
support the stop. United States v. McDonald, 453 F.3d 958,
961-62 (7th Cir. 2006) (a police officer’s mistake of law
cannot support probable cause to conduct a stop). “Proba-
ble cause only exists when an officer has a ‘reasonable’
belief that a law has been broken. . . . An officer cannot
have a reasonable belief that a violation of the law
occurred when the acts to which the officer points as
supporting probable cause are not prohibited by law.”
McDonald, 453 F.3d at 961. At all times, the standard is
objective. Whren, 517 U.S. at 813; Scott v. United States, 436
U.S. 128, 137 (1978) (in evaluating alleged violations of
No. 09-1840 9
the Fourth Amendment, a court first undertakes an ob-
jective assessment of an officer’s actions in light of the
facts and circumstances then known to the officer). The
officer’s subjective beliefs are largely irrelevant 4 to the
probable cause inquiry. Whren, 517 U.S. at 813. These
standards require that we answer two questions: first,
we must determine what facts were known to Trooper
Weiss at the time he stopped the vehicle. Second, we
must decide whether a reasonable officer could conclude
that these facts amount to a violation of the law, that is,
whether a reasonable officer could conclude that the air
freshener posed a material obstruction under Illinois law.
We begin by examining the trooper’s testimony re-
garding the traffic stop. At the suppression hearing,
Trooper Weiss testified that, as the van approached
his squad car, he “could see an air freshener hanging
from the rearview mirror of the vehicle.” Tr. at 9. He
decided to pull the vehicle over:
4
We say “largely irrelevant” rather than simply “irrelevant”
because of the Supreme Court’s admonition that, “[o]n occasion,
the motive with which the officer conducts an illegal search
may have some relevance in determining the propriety of
applying the exclusionary rule.” Scott v. United States, 436
U.S. 128, 139 n.13 (1978). For example, “as a practical matter
the judge’s assessment of the motives of the officers may
occasionally influence his judgment regarding the credibility
of the officers’ claims with respect to what information was
or was not available to them at the time of the incident in
question.” Id. In this appeal, the trooper’s credibility is not
at issue and so his subjective intent in effecting the stop is
wholly irrelevant to the probable cause analysis.
10 No. 09-1840
Q. What was the reason for the traffic stop?
A. For the obstructed view violation.
Q. That was for the?
A. The air freshener.
Tr. at 9. In testifying about issuing the Warning Ticket
to Garcia-Garcia, Weiss testified:
Q. What does—what was this citation written for?
A. This was—the stop card warning was for the
obstructed windshield, the reason why I stopped
him.
Tr. at 13. The cross-examination focused largely on
whether the trooper could have credibly seen the air
freshener given his distance from traffic and the speed
at which the van was traveling. The trooper confirmed
that he witnessed no traffic violations other than the
obstructed windshield, and conceded that he did not
stop every car with an air freshener. He explained that
this car drew his attention because of its low speed and
the rigid appearance of the driver. On re-direct, the
prosecutor again asked Weiss about air freshener:
Q. Trooper, is it your testimony that as the vehicle
approached you northbound, you saw the air
freshener in the windshield?
A. Correct.
Q. And seeing that, you believed that a violation of
the Illinois code was taking place?
A. Yes, sir.
No. 09-1840 11
Q. And that was the justification for the traffic stop?
A. Correct.
Tr. at 27-28. In addition to the trooper’s testimony, the
Warning Ticket itself was admitted into evidence as
were the air freshener and photos of the van taken at the
time of stop. The photos display the size and position
of the air freshener relative to the driver’s seat. As
we noted above, the Warning Ticket bore the trooper’s
handwritten notation that the offense was “12-503(c)
OBSTRUCTED WINDSHIELD.” Section 12-503(c) prohibits
a driver from operating a vehicle with any object sus-
pended between the driver and the front windshield
which “materially obstructs the driver’s view.” The facts
known to Trooper Weiss, then, included the presence of
an air freshener of the size we described, hanging in
the driver’s line of vision as shown in the photographs.
The district court found Trooper Weiss to be credible
and credited all of his testimony. We must defer to
those findings of fact unless they are clearly erroneous.
Groves, 470 F.3d at 317-18. A factfinder’s choice between
two permissible views of the evidence cannot be clearly
erroneous. United States v. Jones, 614 F.3d 423, 425-26
(7th Cir. 2010) (citing Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518
(1985)). Because the district court’s “account of facts
is plausible in light of the record viewed in its entirety,”
we must defer to it. Jones, 614 F.3d at 426. If an officer
knowing these facts could reasonably conclude that
the obstruction violated Illinois law, that is all that is
necessary to support probable cause.
12 No. 09-1840
In fact, this court has concluded in similar circum-
stances that an air freshener could constitute a material
obstruction in violation of Illinois law. See United States
v. Smith, 80 F.3d 215 (7th Cir. 1996). In Smith, as in the
instant case, the sole reason for stopping the vehicle
was the officer’s belief that an air freshener hanging
from the rearview mirror violated the Illinois stat-
ute prohibiting material obstructions. We noted that an
officer’s subjective reasons for stopping a vehicle were
irrelevant so long as the officer had probable cause for
the stop. The air freshener supplied probable cause in
that case even though a special agent of the Illinois
State Police testified that, in his opinion, the use of a
hanging air freshener did not violate the material ob-
structions statute. 80 F.3d at 219. The air freshener at
issue in Smith was one-third to one-half the size of a
parking tag for handicapped drivers. Under the rea-
soning of Smith, the government has met its burden of
demonstrating by a preponderance of the evidence that
the stop was supported by probable cause: Trooper Weiss
pulled the van over because he had a reasonable belief
that a law was being broken.
Garcia-Garcia argues that, under Illinois case law, no
officer could reasonably believe that the air freshener
constituted a material obstruction. Citing People v. Cole,
874 N.E.2d 81 (Ill. App. 4 Dist. 2007), Garcia-Garcia
argues that there was no violation of the law and
Trooper Weiss stopped the car under the misapprehen-
sion regarding what the law prohibited. Cole is easily
distinguishable. In Cole, a police officer stopped a car
in which he observed a short, single strand of opaque
No. 09-1840 13
beads, one quarter inch in diameter, hanging from the
rearview mirror of the car. The officer testified that the
statute, the same one at issue here, prohibited any
object hanging between the driver and the windshield.
874 N.E.2d at 83. He persisted in this belief even when
shown the language of the statute prohibiting only
material obstructions. The Illinois Appellate Court de-
termined that the officer was operating under a mistake
of law, and that a traffic stop based on a mistake of
law was unconstitutional even if the mistake is rea-
sonable and made in good faith. 874 N.E.2d at 88. The
court also found that, in reviewing an officer’s rationale
for a traffic stop, a judge should look to whether
specific, articulable facts produced by the officer would
support reasonable suspicion of a traffic violation. 874
N.E.2d at 88. Thus, even if the officer was mistaken
about the law, a traffic stop would be constitutional if
the facts known to an officer raised a reasonable
suspicion that the defendant was in fact violating the
law as written. Under the Illinois court’s interpretation,
then, if the obstruction was in fact material, then the
officer’s mistaken belief that any obstruction would
suffice was irrelevant and the stop would be valid.
Because the obstruction in Cole could not reasonably be
considered material, the stop was not supported by
probable cause. The officer’s sincere belief that any ob-
struction violated the law could not change this result.
Unlike the officer in Cole, Trooper Weiss did not testify
that he believed any obstruction violated the law. He
merely testified that this object violated Section 12-503(c).
And unlike the single, thin strand of beads in Cole, the
14 No. 09-1840
object in this case was much larger, three inches by
five inches at it’s widest points, large enough that a
reasonable officer could conclude that it posed a
material obstruction.
The Illinois courts have come to differing conclu-
sions in air freshener cases, depending on whether the
officer properly understood the law and depending on
the size, placement and mobility of the air freshener
at issue. An officer’s belief that any obstruction larger
than a thumbnail violated the statute was found to be
a mistake of law. People v. Mott, 906 N.E.2d 159, 164 (Ill.
App. 4 Dist. 2009). In Mott, the air freshener at issue
was an irregular shaped cardboard leaf with a stem,
three inches long including the narrow half-inch stem,
and two and three-quarters inches at its widest point.
The officer testified it was hanging one inch below
the mirror but it was unclear whether it was in the
driver’s line of vision at all. Given the mistaken reading
of the law, the court found that an object that size that
was not shown to be in the driver’s line of vision could
not reasonably constitute a material obstruction. Mott,
906 N.E.2d at 164-65. The court noted, however, that
size alone does not determine whether an object mate-
rially obstructs the driver’s view, and that air fresh-
eners, necklaces, pendants, parking passes, charms, beads,
crucifixes, St. Christopher medals and sunglasses could
all, in the proper circumstances, constitute material
obstructions when suspended from a rearview mirror.
906 N.E.2d at 165-66.
In People v. Johnson, 893 N.E.2d 275, 277 (Ill. App. 4
Dist. 2008), the air freshener in dispute was a “life-size
No. 09-1840 15
pair of plastic cherries, red and green in color.” The
cherries were suspended from the rearview mirror by
a rigid wire that did not move or swing. The court found
that the officer had the same mistaken beliefs about
materiality as the officer in Cole, and that no reasonable
officer could conclude that the small cherries materially
obstructed a driver’s view, even if they were placed at eye
level. 893 N.E.2d at 277-79. In contrast, another court
upheld as constitutional a stop based on two “tree or leafy-
shaped” air fresheners hanging from a rearview mirror.
People v. Jackson, 780 N.E.2d 826, 827-29 (Ill. App. 2 Dist.
2002). The officer in that case testified that the two sus-
pended objects were material obstructions in his opin-
ion. Noting that we held in Smith that air fresheners
could be considered material obstructions, the court
found that these two objects could give rise to a rea-
sonable suspicion of criminality, justifying the stop.
From these cases we conclude that air fresheners may
(or may not) constitute material obstructions depending
on their size, their position relative to the driver’s line
of vision, and whether they are stationary or mobile. In
this case, in addition to the trooper’s testimony, the
government entered into evidence the air freshener
itself, the Warning Ticket, and photos of the air freshener
hanging in the van. The object the trooper observed
was small, but given its size and position relative to
the driver, a reasonable officer could conclude that it
violated the Illinois statute prohibiting material obstruc-
tions. That reasonable belief is all that is needed to
justify the warrantless stop. See Carmichael v. Village of
Palatine, 605 F.3d 451, 457 (7th Cir. 2010) (the probable
16 No. 09-1840
cause inquiry is an objective one, depending on the
facts as they would have appeared to a reasonable
person in the position of the arresting officer).
Finally, we note that even a successful challenge to
the stop would not result in the suppression of the
most important evidence that Garcia-Garcia seeks to
exclude. “The ‘body’ or identity of a defendant or re-
spondent 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 inter-
rogation occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032,
1039-40 (1984). See also Gutierrez-Berdin v. Holder, 618
F.3d 647, 656 (7th Cir. 2010) (same). Garcia-Garcia,
having previously been deported, and not having
obtained the consent of the Attorney General to return,
is a person whose presence in this country, without
more, constitutes a crime. His identity may not be sup-
pressed even if it was obtained in violation of the
Fourth Amendment. Of course, we have already con-
cluded that Trooper Weiss did not violate the Fourth
Amendment when he stopped the van because he rea-
sonably believed it was being operated in violation of
Illinois traffic laws. The judgment is, therefore,
A FFIRMED.
1-25-11