People v. Mendoza

• Decision Date: 29 March 2006
• Docket Number: No. 2-05-0132.,2-05-0132.
• Citation: 846 N.E.2d 169
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Hugo MENDOZA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

846 N.E.2d 169

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Hugo MENDOZA, Defendant-Appellee.

No. 2-05-0132.

Appellate Court of Illinois, Second District.

March 29, 2006.

COPYRIGHT MATERIAL OMITTED

John A. Barsanti, Kane County State's Attorney, St. Charles, Martin P. Moltz, Deputy Director, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Kathleen Colton, Law Offices of Kathleen Colton, Ltd., Batavia, for Hugo Mendoza.

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 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 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.

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 court used the analytical framework set out by the supreme court in People v. Gonzalez, 204 Ill.2d 220, 273 Ill.Dec. 360, 789 N.E.2d 260 (2003), and applied by this court in People v. Parra, 352 Ill.App.3d 584, 288 Ill.Dec. 16, 817 N.E.2d 141 (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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. 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, 273 Ill.Dec. 360, 789 N.E.2d 260. This is so even if the real reason for stopping the driver is something other then the suspected traffic violation—say, to investigate possible gang activity. See People v. Lomas, 349 Ill. App.3d 462, 467, 285 Ill.Dec. 450, 812 N.E.2d 39 (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, 88 S.Ct. at 1879, 20 L.Ed.2d at...