The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County. Honorable John J. Moran, Jr., Judge Presiding.
Following a bench trial, defendant Bernard Bunch was convicted of possession of a controlled substance and sentenced to four years in prison. Defendant's motion to quash his arrest and suppress evidence, heard simultaneously with his trial, was denied. On appeal, defendant contends that the trial court erred in denying the motion to suppress. We reverse.
Officer Daniel Lukensmeyer testified that at approximately 1:10 a.m. on February 2, 2000, he was on patrol alone in a marked police vehicle when he observed a 1990 Pontiac automobile near 35th Street and Wentworth Avenue in Chicago. He saw the driver of that vehicle slow down and come to a stop but did not see the vehicle's brake lights activate when they should have. The officer initiated a traffic stop by following the vehicle and flashing his emergency lights. As he projected his high-beam headlights into the vehicle, he saw the driver lean forward twice toward the dashboard. When the vehicle stopped, the officer approached the driver, defendant's brother, and subsequently arrested him for driving without a license. At some point during the arrest, the driver informed the officer that he owned the vehicle.
The officer, after handcuffing the driver, walked to the passenger side and instructed the defendant to get out of the car and wait at the rear while he took charge of the vehicle.
Standing about one foot apart, the officer and defendant engaged in a conversation in which the officer asked defendant some questions, including his name and where he was coming from. The officer testified he was "curious to find out exactly who he was." Defendant then asked why the driver was arrested. As they spoke, the officer shined his flashlight on defendant's face, as he normally did when working at night. A few seconds into the conversation, the officer saw a small clear plastic object containing white material inside defendant's mouth, and then saw it a second time. Based on his 35 years' experience as a police officer and more than 2,000 narcotics arrests, the officer suspected that the object was a bag containing heroin or cocaine.
The officer arrested defendant and ordered him to expectorate the object; defendant complied. The object was a plastic bag containing white material later confirmed to be heroin. After calling for assistance, the officer investigated the interior of the vehicle and retrieved two plastic bags containing white powder from a void in the dashboard. The officer testified that defendant then made an unsolicited statement that "[a]ll the heroin you found is mine." When assistance arrived, the officer tested the brake lights of the vehicle and discovered that they were working properly.
Defendant was later charged by information with possession of less than 15 grams of a controlled substance based on the plastic bag of heroin found in his mouth.
After hearing the officer's testimony and defendant's argument on his motion to quash arrest and suppress evidence, the court denied the motion and defendant's trial continued.
Defendant testified to a different version of events. He said the officer did not mention or examine the vehicle's brake lights, but told defendant's brother that he stopped them "because [he] saw two black men in the car." After the driver was arrested, the officer told defendant to exit the vehicle, handcuffed him and placed him inside the police car, saying the handcuffs were for the officer's personal safety. Defendant testified that he did not have anything in his mouth and did not spit anything out. The officer then removed a black case from the trunk of the police car and carried it into the vehicle that defendant had exited. Defendant testified that he never told the officer that the narcotics in the vehicle were his, and that he had no narcotics on that date.
Defendant contends the officer had no legal justification for stopping and questioning him, and no probable cause for his arrest.
When, as here, a defendant challenges neither the trial court's findings of fact nor its determination of witness credibility, a ruling on a motion to suppress is reviewed de novo. People v. Mendez, 322 Ill. App. 3d 103, 109, 749 N.E.2d 391 (2001). In presenting a motion to suppress, the defendant bears the burden of establishing that the search or seizure was ...