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United States v. Cotton

United States District Court, N.D. Illinois, Eastern Division

November 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LORENZO COTTON, Defendant.

          OPINION AND ORDER

          SARA L. ELLIS, UNITED STATES DISTRICT JUDGE

         Chicago Police recovered a pistol during a traffic stop of a van Lorenzo Cotton was driving. The Government subsequently charged Cotton with possessing a firearm after being convicted of a crime punishable by more than a year of imprisonment. Cotton now moves the Court to suppress the firearm on the grounds that police unlawfully seized him and searched his vehicle in violation of the Fourth Amendment. Because there was no probable cause or reasonable suspicion to justify the initial stop, the subsequent search was unlawful, and consequently, the Court must suppress the fruit of the search.

         BACKGROUND[1]

         On March 2, 2018, Chicago Police Officer Steven Vidljinovic received a tip from a source who stated that that s/he had observed a black man known as “Big Moe” get into a white Ford Windstar van with a handgun. The source reported that the Windstar had temporary plates and that officers could find it in Sherman Park, Chicago, Illinois. Vidljinovic was aware that members of the Black P-Stone Nation gang refer to one another as “moes, ” and that they refer to the area controlled by the gang, which surrounds Sherman Park, as “Motown.” Vidljinovic passed the information on to officers in the vicinity of Sherman Park, and at approximately 12:33 p.m., Officers Pearce and Herrera observed a white Ford Windstar with temporary plates driving near the park.

         Officers performed a traffic stop, and upon approaching the van, Pearce asked the driver for his license. The driver stated he did not have it on him but that his license would show up if police ran his name: Lorenzo Montel Cotton. After discussing where Cotton was coming from and where he was headed, Pearce asked Cotton if there was “anything in the car we should know about, ” which Cotton denied. Doc. 38, Ex. 1, Pearce Body Camera at 1:37. Officers then directed Cotton and his backseat passengers to step out of the car. After searching all three occupants for weapons, the officers handcuffed them. As Pearce placed one of the rear seat passengers in handcuffs, he stated: “You're just being detained alright, you're not being arrested right now. You're just being detained until we figure out who you are and what's going on, okay?” Id. at 2:57. Herrera then began to search the van and after about a minute found a black semi-automatic handgun in the center console.

         During the stop, Cotton questioned what gave the officers probable cause to stop him. Pearce responded: “I'll give you probable cause right now. Your tag isn't visible from more than fifteen feet away. Your license plate, it looks like shit, you can't see it. It needs to be free and clear.” Id. at 9:50. Officers questioned Cotton and the passengers further about the gun before they arrested all three of them.

         Subsequent to the criminal charge in this case, the Government disclosed to Cotton that an “anonymous citizen, ” who did not want to be identified for fear of retaliation, had provided the tip to Vidljinovic. The Government later gave conflicting information as to whether the tip came from an anonymous citizen or a confidential informant. Eventually, the Government made additional disclosure indicating that the confidential source had worked with the Chicago Police Department (“CPD”) for approximately one year at the time s/he provided the tip on March 2. S/he had provided information that led to search warrants on at least five different occasions between June 2017 and October 2017. The source also worked with the FBI and had provided information that led to the recovery of firearms on five separate occasions between November 2017 and January 2018. Between November 2017 until the end of October 2018, the FBI paid the source a total of $3850 for the information s/he provided.

         ANALYSIS

         Cotton argues that there was no traffic violation justifying the stop, and therefore the subsequent search that yielded the gun was also unlawful. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He also argues that even if there was a justification for the initial stop the police impermissibly prolonged the encounter based on an unreliable tip in order to search his van.

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A warrantless traffic stop is justified if police have probable cause to believe that the driver has committed “even a minor traffic offense.” United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011). The Fourth Amendment also allows brief investigatory stops of vehicles based on a reasonable suspicion of criminal activity. Navarette v. California, 572 U.S. 393, 396-97, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d. 621 (1981); Terry v. Ohio, 392 U.S. 1, 21-22, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Reasonable suspicion amounts to something less than probable cause but more than a hunch.” United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005). The reasonableness of a stop depends on “both the content of the information possessed by police and its degree of reliability.” Navarette, 572 U.S. at 397 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). Looking at the whole picture, the officer initiating the stop “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18. The Government bears the burden of demonstrating the justification for a warrantless stop by a preponderance of the evidence. United States v. Watson, 900 F.3d 892, 895 (7th Cir. 2018); Garcia-Garcia, 633 F.3d at 612.

         Beginning with the lawfulness of the stop, the Government argues the officers had probable cause to stop the van because they “could not read the registration on the rear temporary tag because it was obscured.” Doc. 38 at 3. The Government argues this violated § 9-76-050(d) of the Chicago Municipal Code, which states: “The registration plate at the back of every motorcycle and every motor vehicle shall be so lighted that the numbers on said plate shall be plainly legible and intelligible at a distance of 50 feet[.]” Cotton responds that this provision of the code only governs poor lighting, which is irrelevant to a stop in broad daylight. Cotton further argues that the body camera videos of the officers show that his license plate was clearly legible.

         To begin, it is unclear to what the Government refers when it states that the registration on the temporary tag was obscured. If the Government means that the plate's registration sticker was not visible, that is because temporary plates do not require annual renewal stickers that are affixed to standard plates. See United States v. Hernandez, 341 F.Supp.2d 1030, 1032-33 (N.D. Ill. 2004) (“In fact, Mr. Hernandez' vehicle displayed a temporary Illinois license plate, and not a registration sticker, which are only applied to regular license plates in years subsequent to their initial issue.”). As far as the Court can tell, the plate need only display the date of expiration along the bottom. Id.

         But if by “tag” the government means that the plate itself was not legible, it was not a violation of § 9-76-050. Section 9-76-050 is titled “Required lighting, ” and nearly all the subsections refer to lamps, such as headlamps (“All motor vehicles . . . shall exhibit at least two lighted head lamps showing white lights or lights with a yellow or amber tint, during the period of sunset to sunrise, and at any other times when due to insufficient natural light or unfavorable atmospheric conditions (fog, snow or rain)[.]”), rear lights (“Each motor vehicle . . . shall also exhibit at least one lighted lamp which shall be so situated as to throw a red light visible for at least 500 feet in the reverse direction.”), or other artificial lighting. Id. Further, the ordinance does not state that a lamp must always illuminate the registration plate, only that the plate must be properly “lighted that the numbers on said plate shall be plainly legible and intelligible at a distance of 50 feet.” Id. In other words, a lamp must illuminate the license plate to render it legible at fifty feet under certain conditions, such as at night or if the weather is overcast. But if there is plenty of natural light to illuminate a license plate, the plate is still “lighted.” Here, the stop occurred close to noon, and conditions were clear enough to naturally light the Windstar's license plate. A reasonable officer could not have objectively believed that Cotton violated this ordinance.

         If the license plate was not clearly visible because it was obscured, as the Government argues, that is a different question, one that would fall under § 9-76-160(a)(4) (“Every registration plate shall at all times be . . . in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.”).[2] The body worn camera (ā€œBWCā€) recordings, however, do not support this. The license plate, reading ā€œ899 T 106, ā€ is legible, and there is ...


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