                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                              People v. Henderson, 2013 IL 114040




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CARL
Court:                     HENDERSON, Appellant.



Docket No.                 114040


Filed                      May 23, 2013


Held                       Where a police stop of a car was not legally justified but defendant
(Note: This syllabus       backseat passenger exited the vehicle and fled, dropping a gun, a motion
constitutes no part of     to suppress it would not have been granted at his trial for aggravated
the opinion of the court   unlawful use of a weapon and counsel was not ineffective in failing to
but has been prepared      make it—fruit-of-the-poisonous-tree claim precluded by break in the
by the Reporter of         chain of causation.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Stanley J.
                           Sacks, Judge, presiding.



Judgment                   Affirmed.
Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                   Defender, and Brian E. Koch, Assistant Appellate Defender, of the Office
                         of the State Appellate Defender, of Chicago, and Jon Terry, law student,
                         for appellant.

                         Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                         State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
                         Yvette Loizon, Assistant State’s Attorneys, of counsel), for the People.


Justices                 JUSTICE THEIS delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
                         and Burke concurred in the judgment and opinion.



                                           OPINION

¶1        Following a bench trial in the circuit court of Cook County, defendant Carl Henderson
      was found guilty of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)
      (West 2008)) and sentenced to eight years’ imprisonment. On appeal, defendant argued that
      his trial counsel rendered ineffective assistance by failing to file a motion to suppress the
      weapon. The appellate court rejected defendant’s argument, and affirmed the judgment of
      the circuit court. 2012 IL App (1st) 101494. For the reasons that follow, we affirm.

¶2                                       BACKGROUND
¶3        The following evidence was adduced at defendant’s trial. On September 8, 2009, Officers
      Robert Staken and Matthew Brophy were on routine patrol in a marked squad car in the area
      of Central Park and Adams Street in Chicago. Brophy was driving. At about 1:30 a.m., an
      individual flagged them down. Both officers described this individual as a black male in his
      20s. The officers did not ask his name. He was, according to Staken, an “anonymous citizen.”
      Brophy recalled that the man was of average height, meaning 5 feet 10 inches tall. Staken did
      not recall what the man was wearing, whether he had facial hair, or how tall he was. The man
      advised the officers of a “possible gun” in a tan, four-door Lincoln. Staken testified that the
      man also identified the number of persons in the Lincoln, but Staken was not asked, and he
      did not volunteer, that number. Shortly after this conversation, the officers observed a tan
      four-door Lincoln traveling eastbound on Madison Street. They activated their squad car
      lights and “curbed” the vehicle. The officers did not observe the driver commit any traffic
      violations. The driver immediately exited the Lincoln and began walking toward the officers,
      who had exited their squad car. The officers ordered the driver back to his vehicle, after
      which they placed him in handcuffs.
¶4        The officers next ordered the front seat passenger out of the vehicle. The passenger

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     complied. After conducting a pat-down search for weapons, the officers placed the passenger
     in handcuffs and brought him to the rear of the Lincoln. While Brophy watched the driver
     and the front seat passenger, Staken ordered the backseat passenger, defendant, out of the
     vehicle. Defendant told Staken that the door on the passenger side did not open, so Staken
     ordered him to get out on the driver’s side. Defendant complied. Brophy walked defendant
     over to Staken, at which point, according to Staken, defendant “took off running” and
     “dropped a weapon onto the ground.” Staken thought the weapon, a handgun, came from
     defendant’s waistband. Staken never saw the gun in defendant’s hand.
¶5        Staken told Brophy, who was handling the driver and front seat passenger, that a handgun
     was on the ground. Staken then pursued defendant in the squad car as defendant ran
     eastbound on Madison Street. After defendant fell to the ground, Staken arrested him. When
     Staken returned with defendant to the place where the Lincoln was parked, Brophy advised
     Staken that he had recovered the weapon, a .22-caliber handgun loaded with four bullets.
     Brophy testified that the gun was found about two feet from the Lincoln.
¶6        Defendant did not testify and did not call any witnesses.
¶7        The trial court found defendant guilty of aggravated unlawful use of a weapon. During
     the court’s oral ruling, the trial judge observed that a motion to suppress the gun “would not
     have [had] any chance of success.” The court elaborated:
                   “If [defendant] would have stayed there for the search, I think there would have
              been a basis for [a] motion to suppress as to [defendant]; that all the police know at
              that point was that someone stopped [them] or flagged [them] down, whatever that
              was, said there might possibly be a gun in that car. That would be dubious at best
              about probable cause to stop that car and search the guys in the car.
                   If defendant would have stayed there for the search, he would have been a lot
              better off than running off. But by running off and leaving the gun behind, and I
              believe he did drop the gun as he was running off, the gun becomes abandoned and
              there’s no basis for a motion to suppress under those circumstances. If he would have
              stayed for the search, I think a motion [to suppress] would have been appropriate to
              file under those circumstances. But since he didn’t stay for the search, he did not
              submit to police authority, therefore, there’s no basis for a motion to suppress
              evidence as far as [defendant] is concerned.”
     The trial court subsequently sentenced defendant to eight years’ imprisonment.
¶8        Defendant appealed, arguing that his trial counsel was ineffective because she failed to
     file a motion to suppress the gun. Defendant maintained that the officers’ initial seizure of
     the Lincoln was illegal and that the recovery of the gun was the fruit of that illegal seizure.
     The appellate court agreed with defendant that the initial seizure was illegal “because it was
     based on an anonymous tip that was not sufficiently reliable to provide the officers with a
     reasonable suspicion that defendant was engaged in criminal activity which would justify a
     stop under Terry v. Ohio, 392 U.S. 1 (1968).” 2012 IL App (1st) 101494, ¶ 9. The appellate
     court, however, agreed with the State that defendant was not seized within the meaning of
     the fourth amendment at the time he dropped the gun and, thus, the gun could not be the fruit
     of an illegal seizure. Id. ¶¶ 12, 27. The appellate court concluded that because any motion

                                              -3-
       to suppress would not have succeeded, defendant’s trial counsel was not ineffective by
       failing to file such a motion. Id. ¶ 28.
¶9          We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
       2010).

¶ 10                                          ANALYSIS
¶ 11       A claim of ineffective assistance of counsel is evaluated under the two-prong test set
       forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Ramsey, 239 Ill. 2d 342,
       433 (2010); People v. Albanese, 104 Ill. 2d 504, 526 (1984). Under this test, a defendant
       must demonstrate that counsel’s performance fell below an objective standard of
       reasonableness, and a reasonable probability exists that, but for counsel’s unprofessional
       errors, the result of the proceeding would have been different. Ramsey, 239 Ill. 2d at 433. A
       defendant’s failure to establish either prong of the Strickland test precludes a finding of
       ineffective assistance of counsel. People v. Patterson, 217 Ill. 2d 407, 438 (2005).
¶ 12       Defendant argues that in order to prevail on his ineffectiveness claim, he need not show
       that the motion to suppress would have been granted; rather, he must show only that a
       reasonable probability exists that the motion would have been granted and that the outcome
       of his trial would have been different. In a line of cases beginning with People v. Orange,
       168 Ill. 2d 138, 153 (1995), this court has stated that, in order to establish prejudice where
       an ineffectiveness claim is based on the failure to file a suppression motion, the defendant
       must show that a reasonable probability exists both that the motion would have been granted,
       and that the result of the trial would have been different had the evidence been suppressed.
       Thus, defendant’s position finds support in the case law. We note, however, that other
       opinions have recognized a more stringent standard, stating that defendant must establish that
       the unargued suppression motion was “meritorious,” i.e., it would have succeeded, and that
       a reasonable probability exists that the trial outcome would have been different without the
       challenged evidence. E.g., People v. Harris, 182 Ill. 2d 114, 146 (1998); People v. Bailey,
       232 Ill. 2d 285, 289 (2009). Thus, the position defendant expressly disavows is also
       supported by our case law.
¶ 13       The underpinnings of the Orange “reasonable probability standard” and the Harris
       “meritorious standard” can be traced back to a single case: Kimmelman v. Morrison, 477
       U.S. 365 (1986).
¶ 14       In Kimmelman, the respondent filed a petition for a writ of habeas corpus arguing, in
       relevant part, that counsel rendered ineffective assistance, in violation of the Sixth
       Amendment, in that he failed to file a timely motion to suppress evidence seized without a
       search warrant, in violation of the Fourth Amendment. The Supreme Court noted that the
       Sixth Amendment claim must be evaluated under the Strickland standard, and then explained
       what more was required of the respondent:
                “Where defense counsel’s failure to litigate a Fourth Amendment claim competently
                is the principal allegation of ineffectiveness, the defendant must also prove that his
                Fourth Amendment claim is meritorious and that there is a reasonable probability that
                the verdict would have been different absent the excludable evidence in order to

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               demonstrate actual prejudice.” Kimmelman, 477 U.S. at 375.
¶ 15       Although Orange cited favorably to Kimmelman, it did not faithfully set forth the
       standard adopted in that case. We now clarify that where an ineffectiveness claim is based
       on counsel’s failure to file a suppression motion, in order to establish prejudice under
       Strickland, the defendant must demonstrate that the unargued suppression motion is
       meritorious, and that a reasonable probability exists that the trial outcome would have been
       different had the evidence been suppressed.
¶ 16       In the instant case, the success of a motion to suppress the gun is dependent on two
       related propositions advanced by defendant: (1) the vehicle stop was illegal; and (2) the gun
       was the fruit of that illegal seizure. We consider each proposition in turn.

¶ 17                                  Legality of the Vehicle Stop
¶ 18        Defendant argues that the tip provided to police was not reliable enough to provide a
       reasonable suspicion or probable cause to support the vehicle stop. The State counters that
       the trial record is insufficient to determine the legality of the vehicle stop because the record
       was not developed for the purpose of litigating or preserving that claim; rather, the record
       was developed only for the purpose of determining defendant’s guilt on the charged offense.
       Based on this purported insufficiency in the record, the State urges this court to reject
       defendant’s ineffective assistance claim outright. Citing People v. Bew, 228 Ill. 2d 122
       (2008), the State posits that the claim is more appropriately raised in a postconviction
       proceeding where a factual record bearing precisely on the issue of the reasonableness of the
       vehicle stop can be created.
¶ 19        Preliminarily, we note that during oral argument before this court, the State indicated that
       if defendant had chosen to forgo his ineffectiveness claim on direct appeal, and instead raised
       that issue, including the legality of the traffic stop, in a postconviction petition, the State
       would have sought dismissal of that petition under the doctrine of res judicata, arguing that
       the issue should have been raised on direct appeal. Thus, the State’s argument that the record
       here is insufficient and a postconviction proceeding is the better method for litigating
       defendant’s claim is not well taken. This aside, we disagree with the State that this court’s
       opinion in Bew provides a basis to reject outright defendant’s ineffectiveness claim.
¶ 20        In Bew, the defendant claimed that trial counsel was ineffective for failing to file a
       motion to suppress drug evidence obtained as a result of a canine sniff during a vehicle stop.
       At the time of trial, People v. Cox, 202 Ill. 2d 462 (2002), was the governing law. During the
       course of the defendant’s direct appeal, the law changed. Bew, 228 Ill. 2d at 124 (citing
       Illinois v. Caballes, 543 U.S. 405 (2005), People v. Caballes, 221 Ill. 2d 282 (2006)). Based
       on this change in the law, the defendant could no longer establish prejudice resulting from
       counsel’s failure to file a suppression motion. Id. at 133. Although the defendant asserted
       alternative grounds for suppression of the drug evidence, we concluded that the record was
       insufficient to evaluate the defendant’s new arguments and the State’s counter-arguments.
       Id. at 133-34. We thus rejected defendant’s ineffective assistance claim, noting that the
       defendant may raise the alternative grounds for suppression under the Post-Conviction
       Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)). Id. at 135.

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¶ 21        The approach we adopted in Bew was based on the analogous situation discussed in
       Massaro v. United States, 538 U.S. 500 (2003). There, the Supreme Court explained:
       “ ‘[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel and
       the court must proceed on a trial record not developed precisely for the object of litigating
       or preserving the claim and thus often incomplete or inadequate for this purpose.’ ” Bew, 228
       Ill. 2d at 134 (quoting Massaro, 538 U.S. at 504-05). Conversely, in a collateral proceeding,
       “the defendant has a full opportunity to prove facts establishing ineffectiveness of counsel,
       [and] the government has a full opportunity to present evidence to the contrary ***.”
       (Internal quotation marks omitted.) Id.
¶ 22        Bew and Massaro demonstrate that where, as here, the defendant’s claim of
       ineffectiveness is based on counsel’s failure to file a suppression motion, the record will
       frequently be incomplete or inadequate to evaluate that claim because the record was not
       created for that purpose. In the instant case, however, the trial court allowed defense counsel
       considerable leeway in her examination of Officers Staken and Brophy, eliciting the type of
       testimony that would have been elicited at a suppression hearing. Thus, the instant case is
       distinguishable from Bew. Moreover, the State has already conceded the sufficiency of the
       trial record. In its brief before the appellate court, the State defended the legality of the traffic
       stop based on the same record the State now claims is insufficient to make that
       determination. The State argued, in relevant part:
                “In this case, the officers were flagged down and received reliable information from
                a citizen on Adams and Central Park that there was a gun in a four-door, tan Lincoln.
                The citizen also stated the number of people in the car. While on their normal patrol,
                approximately five minutes later, the officers saw the four-door, tan Lincoln near the
                vicinity where the citizen flagged them down. The information provided by the
                citizen was correct, and the officers were able to corroborate the tip by confirming
                the color of the car, the make of the car, the number of people in the car, the car’s
                proximity to the citizen, and the proximity in time to when the information was
                provided. The officers were not required to turn a blind eye to the vehicle fitting the
                description. Thus, the officers had reasonable, articulable suspicion of criminal
                activity, and this was a valid Terry stop.”
¶ 23        Only after the appellate court ruled adversely to the State, determining that the vehicle
       stop was unlawful (2012 IL App (1st) 101494, ¶ 9), did the State argue that the record was
       not sufficiently developed. Although the State could, as the prevailing party below, raise any
       reason or theory appearing in the record in support of the judgment, the State cannot assert
       a new theory inconsistent with the position it adopted in the appellate court. People v.
       Franklin, 115 Ill. 2d 328, 336 (1987).
¶ 24        Accordingly, we reject the State’s argument regarding the sufficiency of the record and
       will consider the legality of the officers’ conduct when they stopped the Lincoln.
¶ 25        A vehicle stop is subject to the fourth amendment’s requirement of reasonableness
       (People v. McDonough, 239 Ill. 2d 260, 267 (2010) (citing Whren v. United States, 517 U.S.
       806, 810 (1996))), which we analyze under the principles set forth in Terry v. Ohio, 392 U.S.
       1 (1968). People v. Close, 238 Ill. 2d 497, 505 (2010). Under Terry, police may conduct a


                                                   -6-
       brief, investigatory stop “where the officer reasonably believes that the person has
       committed, or is about to, commit a crime.” Id. A passenger in a vehicle stopped by police,
       such as defendant here, is seized within the meaning of the fourth amendment, and therefore
       may challenge the constitutionality of the vehicle stop. Brendlin v. California, 551 U.S. 249,
       251 (2007); People v. Bunch, 207 Ill. 2d 7, 13 (2003).
¶ 26        In the instant case, testimony at trial established that Officers Staken and Brophy did not
       observe the driver of the Lincoln commit any traffic violations, and that they stopped the
       vehicle based on a tip provided by an “anonymous citizen” who had flagged them down. A
       tip from an anonymous person may supply the requisite quantum of suspicion to conduct a
       Terry stop, provided the information bears some indicia of reliability. Alabama v. White, 496
       U.S. 325, 327 (1990); People v. Ledesma, 206 Ill. 2d 571, 583 (2003), overruled in part on
       other grounds by People v. Pitman, 211 Ill. 2d 502, 513 (2004). The tip must 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). As the Supreme Court explained:
                     “An accurate description of a subject’s readily observable location and
                appearance is of course reliable in this limited sense: It will help the police correctly
                identify the person whom the tipster means to accuse. Such a tip, however, does not
                show that the tipster has knowledge of concealed criminal activity.” Id.
       Knowledge of concealed criminal activity may be demonstrated where the anonymous
       informant accurately predicts future behavior, thus indicating that the informant has “inside
       information.” White, 496 U.S. at 332; accord Ledesma, 206 Ill. 2d at 589-90. White and J.L.
       illustrate these principles.
¶ 27        In White, police received an anonymous telephone tip that a woman, identified by name,
       would leave a particular address at a particular time, and drive to a certain motel. The caller
       described the vehicle in detail, including the broken taillight. The caller indicated that the
       woman would be in possession of an ounce of cocaine in a brown attache case. Police went
       to that location, where they saw a vehicle in the parking lot that matched the caller’s
       description. Police observed a woman drive off in that vehicle, taking the most direct route
       to the designated motel. Police stopped the vehicle. With the woman’s consent, police
       searched the car and found a brown attache case which contained marijuana. Following the
       woman’s arrest, the officers also found cocaine in the woman’s purse.
¶ 28        The Court held that under the totality of the circumstances, the vehicle stop was justified.
       White, 496 U.S. at 332. The Court noted that while anyone could have provided a detailed
       description of the vehicle, the caller was able to predict the woman’s future behavior,
       demonstrating a special familiarity with her affairs. Id. “Because only a small number of
       people are generally privy to an individual’s itinerary, it is reasonable for police to believe
       that a person with access to such information is likely to also have access to reliable
       information about that individual’s illegal activities.” Id.
¶ 29        In contrast to its holding in White, the Supreme Court held in J.L. that an anonymous
       telephone tip “that a young black male standing at a particular bus stop and wearing a plaid
       shirt was carrying a gun” (J.L., 529 U.S. at 268) was not sufficiently reliable to justify a
       Terry stop of that individual (id. at 271). The Court noted that the anonymous caller provided


                                                  -7-
       no “predictive information” through which police could test the informant’s knowledge or
       veracity. Id. The anonymous tip was nothing more than a “bare report of an unknown,
       unaccountable informant who neither explained how he knew about the gun nor supplied any
       basis for believing he had inside information about J.L.” Id. Thus, the gun recovered by
       police as a result of their stop-and-frisk of J.L. was properly suppressed. Id. at 269.
¶ 30        We conclude that the present case is more closely aligned with J.L. than White. Although
       the anonymous citizen provided information that helped identify the vehicle connected to a
       “possible gun,” the citizen provided no predictive information through which police could
       test the citizen’s knowledge of the gun. We recognize that the tip here was provided in
       person to police, rather than by telephone, as was the case in J.L. This fact, standing alone,
       is insufficient to demonstrate the reliability of the information provided to police. See People
       v. Rhinehart, 2011 IL App (1st) 100683 (holding that an in-person tip was not sufficiently
       reliable to justify a Terry stop where the tip was from an unidentified citizen and disclosed
       only that a black male at a certain location wearing certain clothing had a gun).
¶ 31        Because the vehicle stop effected an illegal seizure of defendant, we consider his second
       proposition necessary to the success of a motion to suppress, i.e., that the gun was the fruit
       of that illegal seizure.

¶ 32                                  Fruit of the Poisonous Tree
¶ 33       The “fruit of the poisonous tree” doctrine is an outgrowth of the fourth amendment
       exclusionary rule. People v. Winsett, 153 Ill. 2d 335, 351 (1992). 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. People
       v. McCauley, 163 Ill. 2d 414, 448 (1994). As we recognized in People v. Gervasi, 89 Ill. 2d
       522, 528 (1982), the test of whether evidence is the fruit of the poisonous tree was best
       articulated in Wong Sun v. United States, 371 U.S. 471 (1963). Under Wong Sun, the
       question is “whether, granting establishment of the primary illegality, the evidence to which
       instant objection is made has been come at by exploitation of that illegality or instead by
       means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S.
       at 488 (quoting John MacArthur Maguire, Evidence of Guilt 221 (1959)). In other words, a
       court must consider “whether the chain of causation proceeding from the unlawful conduct
       has become so attenuated or has been interrupted by some intervening circumstance so as to
       remove the ‘taint’ imposed upon that evidence by the original illegality.” United States v.
       Crews, 445 U.S. 463, 471 (1980). Factors relevant to an attenuation analysis include the
       temporal proximity of the illegal police conduct and the discovery of the evidence; the
       presence of any intervening circumstances; and the purpose and flagrancy of the official
       misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975); People v. Johnson, 237 Ill. 2d
       81, 93 (2010).
¶ 34       Importantly, the Supreme Court has rejected a “but for” test under which evidence would
       be deemed inadmissible simply because it would not have been discovered “but for” the
       illegal actions of the police. Wong Sun, 371 U.S. at 487-88; Dunaway v. New York, 442 U.S.
       200, 217 (1979). Thus, evidence which comes to light through a chain of causation that


                                                 -8-
       began with an illegal seizure is not per se inadmissible. People v. Harris, 495 U.S. 14, 17
       (1990). See also People v. Gabbard, 78 Ill. 2d 88, 95 (1979) (recognizing that Wong Sun and
       its progeny rejected a simple “but for” test).
¶ 35        Defendant argues that all three attenuation factors weigh in his favor. Defendant posits
       that almost no time passed between his illegal seizure and the discovery of the gun; his flight
       and abandonment of the gun were direct responses to the illegal seizure; and the officers’
       conduct was a flagrant violation of Supreme Court fourth amendment precedent.
¶ 36        With respect to the first attenuation factor—temporal proximity—we observe that the
       record is silent as to the actual amount of time that passed between the initiation of the
       vehicle stop and the discovery of the gun. Nothing in the record indicates, however, that the
       stop was unduly prolonged. Although we disagree with defendant that “almost no time
       passed,” we will proceed under the assumption that the temporal proximity factor favors
       defendant.
¶ 37        Under the second attenuation factor, we focus on the presence of any intervening
       circumstances between the officers’ unlawful conduct in stopping the vehicle and their
       discovery of the gun. Although defendant seeks to minimize the legal significance of his
       flight from the vehicle stop, we agree with the State that defendant’s flight “ended the
       seizure,” and “anything happening thereafter was, by its very nature, no longer tied to the
       initial stop.” This conclusion is supported by California v. Hodari D., 499 U.S. 621 (1991).
¶ 38        In Hodari D., two officers were on patrol when they noticed four or five youths huddled
       around a parked car. As the officers’ car approached, the youths, including Hodari, panicked
       and took flight. Immediately prior to one of the officers tackling Hodari, he tossed away a
       small rock of crack cocaine, which police recovered. In the subsequent juvenile proceeding,
       Hodari moved to suppress the drug evidence. The court denied the motion, but the California
       Court of Appeal reversed, holding that Hodari was seized when he saw the officer running
       toward him; this seizure was unreasonable under the fourth amendment; and the evidence
       of cocaine had to be suppressed as the fruit of that illegal seizure. Hodari D., 499 U.S. at
       623. The California Supreme Court denied review. On certiorari, the United States Supreme
       Court reversed and remanded. Id. at 629.
¶ 39        The narrow question before the Court was “whether, with respect to a show of authority,
       as with respect to application of physical force, a seizure occurs even though the subject does
       not yield.” Id. at 626. The Court held it does not. Id. The Court reasoned that, assuming the
       officer’s pursuit of Hodari constituted a show of authority enjoining him to halt, because
       Hodari did not submit to that show of authority, he was not seized within the meaning of the
       fourth amendment. Thus, the cocaine Hodari abandoned while running from police was not
       the fruit of a seizure, and his motion to suppress evidence of the cocaine was properly denied.
       Id. at 629.
¶ 40        During the course of its analysis, the Court noted that according to one commentator, an
       arrest may be accomplished “ ‘by merely touching, however slightly, the body of the accused
       *** although he does not succeed in stopping or holding him.’ ” Id. at 625 (quoting A.
       Cornelius, Search and Seizure 163-64 (2d ed. 1930)). The Court then observed:
                     “To say that an arrest is effected by the slightest application of physical force,

                                                 -9-
                despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there
                is a continuing arrest during the period of fugitivity. If, for example, [the officer] had
                laid his hand upon Hodari to arrest him, but Hodari had broken away and had then
                cast away the cocaine, it would hardly be realistic to say that the disclosure had been
                made during the course of an arrest. Cf. Thompson v. Whitman, 18 Wall. 457, 471
                (1874) (‘A seizure is a single act, and not a continuous fact’).” (Emphases in
                original.) Id. at 625.
¶ 41        Defendant concedes that, pursuant to Hodari D., his flight terminated his unlawful
       seizure. Defendant argues, however, that the foregoing passage from Hodari D. is
       nonbinding dicta and, in any event, does not mean that his flight wiped the slate clean, as if
       the illegal seizure never occurred.
¶ 42        We recognize that the passage from Hodari D. quoted above was outside the narrow
       issue before the Court and not essential to the outcome of that case. As such, the Court’s
       statements are nonbinding dicta. See Exelon Corp. v. Department of Revenue, 234 Ill. 2d
       266, 277 (2009) (discussing the nonbinding nature of obiter dictum). Accord United States
       v. Parker, 214 F. Supp. 2d 770, 775 n.4 (E.D. Mich. 2002) (referring to the foregoing quote
       from Hodari D. as dicta); Johnson v. State, 689 So. 2d 376, 378 (Fla. Dist. Ct. App. 1997)
       (same); New Mexico v. Garcia, 2009-NMSC-046, ¶ 23, 147 N.M. 134, 217 P.3d 1032
       (same). We also recognize, however, that Supreme Court dicta, even if nonbinding, may be
       persuasive. Our own appellate court in People v. Keys, 375 Ill. App. 3d 459, 462 (2007),
       found the dicta in Hodari D. persuasive. In Keys, the appellate court held that even if the
       initial seizure and attempted patdown of the defendant were unlawful, the drugs recovered
       by police were not recovered through exploitation of that initial illegality, but were
       discovered as a result of the defendant’s escape and abandonment of the drugs. Keys, 375 Ill.
       App. 3d at 464. The appellate court in the instant case also relied on Hodari D., as applied
       in Keys. 2012 IL App (1st) 101494, ¶¶ 24-27.
¶ 43        Federal and state courts outside Illinois have also found the foregoing dicta in Hodari D.
       persuasive, although not universally so. Compare, e.g., United States v. Williams, 608 F.
       Supp. 2d 325, 329-30 (E.D.N.Y. 2008) (following the Hodari D. dicta and holding that the
       defendant, by breaking free of the officer’s grasp, “rendered the legality of that seizure an
       irrelevancy”); State v. Lisenbee, 13 P.3d 947, 951 (Nev. 2000) (citing favorably to the Hodari
       D. dicta and concluding that “flight after a seizure occurs is an effectual end to that seizure,”
       and “[t]hus, any conduct during flight should be considered apart from the illegal police
       action”); and Johnson, 689 So. 2d at 378 (finding the Hodari D. dicta instructive and holding
       that even if the defendant was seized, his flight brought the contemporaneous tossing of a
       gun outside the scope of the seizure), with United States v. Dupree, 617 F.3d 724, 742 (3d
       Cir. 2010) (Fisher, J., concurring in part and concurring in the judgment) (observing that to
       hold, on the basis of Hodari D., that a fleeing suspect cannot reap the exclusionary rule’s
       benefit “completely sidesteps the more sophisticated inquiry our Fourth Amendment
       jurisprudence mandates”); Parker, 214 F. Supp. 2d at 775 n.4 (stating that the Hodari D.
       dicta does not stand for the proposition that evidence initially discovered during an unlawful
       search and seizure is admissible simply because the party escaped from the officer and
       abandoned the contraband while fleeing); Garcia, 2009-NMSC-046, ¶ 23, 147 N.M. 134,

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       217 P.3d 1032 (disagreeing with the lower court that the “rather obscure dicta” in Hodari D.
       means that “any abandoned evidence not disclosed during the course of an arrest is not
       subject to suppression” because such a reading would substantially limit the fruit of the
       poisonous tree doctrine).
¶ 44        Like our appellate court, we find Hodari D. persuasive and will follow the Supreme
       Court’s lead on the issue of fourth amendment jurisprudence before us.1 Thus, similar to
       Hodari D., “it would hardly be realistic to say” in this case that the disclosure of the gun had
       been made during the course of defendant’s seizure where defendant took flight and then
       dropped the gun. Although defendant’s flight did not “wipe the slate clean, as if the illegal
       seizure never took place,” it did interrupt the causal connection between the two events.
¶ 45        Citing United States v. Wilson, 953 F.2d 116 (4th Cir. 1991), and State v. Ingram, 1998-
       NMCA-177, 126 N.M. 426, 970 P.2d 1151, defendant argues that his flight, itself, was a
       direct response to the illegal seizure which did not break the causal connection between the
       initial illegality and the discovery of the gun. Although defendant’s flight was, in some sense,
       a response to the officers’ conduct of stopping the vehicle, we agree with the State that
       defendant is essentially asserting that but for the vehicle stop, he would not have fled and the
       gun would not have been discovered. As already noted, the Supreme Court has rejected a
       but-for or per se rule which would render evidence inadmissible at trial simply because it
       came to light through a series of events that began with an unlawful seizure. Wong Sun, 371
       U.S. at 487-88; Dunaway, 442 U.S. at 217; Harris, 495 U.S. at 17. “[B]ut-for causality is
       only a necessary, not a sufficient, condition for suppression.” Hudson v. Michigan, 547 U.S.
       586, 592 (2006). Rather, a “sufficiently close relationship” between the underlying illegality
       and the evidence must exist for application of the poisonous-fruit doctrine. People v.
       Lovejoy, 235 Ill. 2d 97, 130 (2009). The out-of-state authorities on which defendant relies
       do not convince us that the facts here establish a sufficiently close relationship that goes
       beyond mere but-for causation.
¶ 46        Wilson involved overbearing and harassing police conduct that caused an initially
       consensual encounter at an airport to escalate into an unlawful seizure, culminating in the
       suspect’s flight from police during which he discarded a coat containing illegal drugs. The
       federal appeals court held that “[i]n an airport setting, where passengers and others are
       coming and going at a rapid pace, the temptation to manufacture justification for prolonged
       investigative stops increases,” and that to permit the drugs to be used as evidence “might
       well promote provocative confrontations with suspects, in the hopes of inducing flight and,
       with luck, the abandonment of contraband.” Wilson, 953 F.2d at 127. The concerns
       animating the federal appeals court decision in Wilson are not present here.
¶ 47        In Ingram, a vehicle stop case, the defendant fled after the officer impermissibly directed
       him to empty his pockets, abandoning drug evidence which police recovered after giving
       chase. The New Mexico court of appeals held that because the defendant “merely reacted”


               1
                Defendant does not argue that the search and seizure clause of the Illinois Constitution (Ill.
       Const. 1970, art. I, § 6) provides greater protection than its federal counterpart (U.S. Const., amend.
       IV) in a case such as this.

                                                   -11-
       to the unlawful search, the defendant’s flight and discard of the drugs were not independent
       intervening acts sufficient to purge the taint of the illegal search. Ingram, 1998-NMCA-177,
       ¶ 16, 126 N.M. 426, 970 P.2d 1151. Ingram’s conclusion that the defendant “merely reacted”
       to the unlawful search is akin to saying that but for the illegal search, he would not have fled.
       As already discussed, Supreme Court precedent requires something more than but-for
       causation. Thus, we do not find Ingram persuasive, and adhere to our initial conclusion that
       defendant’s flight interrupted the chain of causation between the illegal seizure and the
       discovery of the gun.
¶ 48        Under the third attenuation factor, we consider the purpose and flagrancy of the official
       misconduct. Brown, 422 U.S. at 604. According to defendant, Officers Staken and Brophy
       flagrantly violated Supreme Court precedent when they stopped the vehicle based on an
       unreliable anonymous tip, and suppression is warranted in order to deter similar misconduct
       in the future.
¶ 49        “[O]fficer conduct is ‘flagrant’ when it is carried out in such a manner as to cause
       surprise, fear, and confusion, or when it has a quality of purposeful or intentional
       misconduct.” Johnson, 237 Ill. 2d at 94. Defendant fails to identify any conduct by the
       officers during the course of the vehicle stop which would qualify as flagrant under this
       standard. Although we have determined that the citizen’s tip on which the officers relied was
       insufficient to justify the stop, “[l]ike many issues involving constitutional protections
       against unreasonable searches and seizures, the reliability of a tip and the propriety of police
       action in response to that tip are often closely decided issues.” Ledesma, 206 Ill. 2d at 584.
       The fact that the officers here failed to discern, at the time they saw the Lincoln, that the tip
       received just a few minutes earlier was more closely aligned with J.L. than White does not
       persuade us that the officers’ misconduct was intentional or otherwise flagrant.
¶ 50        We conclude that defendant has failed to demonstrate that the gun was the fruit of the
       poisonous tree. Defendant’s flight interrupted the causal connection between the officers’
       misconduct, which was not flagrant, and the discovery of the gun. This is not a case where
       the evidence “could be said to have been obtained by exploitation of the illegality.” Gabbard,
       78 Ill. 2d at 95. To conclude otherwise, as defendant urges, is not only contrary to fourth
       amendment jurisprudence, but is contrary to public policy. Permitting defendants to flee from
       police under the circumstances of this case, and yet claim the protections of the fourth
       amendment, would foster a lack of cooperation with law enforcement officers, putting the
       police and the public at risk. See Hodari D., 499 U.S. at 627 (“Street pursuits always place
       the public at some risk, and compliance with police orders to stop should therefore be
       encouraged.”); Keys, 375 Ill. App. 3d at 464 (public policy supports courts of law, rather than
       suspected criminals, determining the legality of seizures); Henson v. United States, 55 A.3d
       859, 869 (D.C. App. 2012) (if the defendant believed that the officer’s conduct was illegal,
       “he should have tested its legality through the courts, rather than engage in self-help” by
       fleeing).
¶ 51        Because a motion to suppress the gun would not have been granted, defendant cannot
       satisfy his burden under Strickland. Accordingly, we reject defendant’s claim that his trial
       counsel was ineffective.


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¶ 52                                    CONCLUSION
¶ 53       We affirm the judgment of the appellate court rejecting defendant’s claim of ineffective
       assistance of counsel and affirming the judgment of the trial court.

¶ 54      Affirmed.




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