Filed 7/16/08
                           NO. 4-07-0820

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Champaign County
DANIEL ROY JOHNSON,                    )    No. 07CM383
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Holly F. Clemons,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          In April 2007, the State charged defendant, Daniel Roy

Johnson, with unlawful possession of cannabis (720 ILCS 550/4(a)

(West 2006)).   In May 2007, defendant filed a motion to suppress

evidence obtained during a traffic stop.    In June 2007, the trial

court granted defendant's motion.   The State filed this interloc-

utory appeal pursuant to Supreme Court Rule 604(a)(1) (210 Ill.

2d R. 604(a)(1)).   On appeal, the State argues the trial court

erred by granting defendant's motion to suppress the evidence.

We disagree and affirm.

                           I. BACKGROUND

          At the May 2007 hearing on defendant's motion to

suppress, defendant testified he worked the 11 p.m. to 3:15 a.m.

shift for FedEx as a package handler.     On April 7, 2007, he got

off work at 3:15 a.m. and took two coworkers as passengers in his
car.    As he was driving on Anthony Drive, he noticed flashing

lights in his rearview mirror.    He immediately pulled over.

Defendant said he had been driving within the speed limit,

maintaining his vehicle in the lane of travel, and driving with

his headlights on, and as far as he knew, he was not in violation

of any traffic laws.    Defendant did have an air freshener hanging

from his rearview mirror.    The air freshener is a life-size pair

of plastic cherries, red and green in color.    Defendant did not

think the cherries materially obstructed his clear view out of

the car.

            Defendant testified as he was stopped, a police officer

walked up to the car and stated, "that's why I stopped you, right

there."    The police officer said defendant should not have the

cherries hanging from the rearview mirror and it was a violation.

Defendant replied, "[T]hat's ridiculous."    According to defen-

dant, the officer told defendant it was illegal to have anything

hanging on the rearview mirror.

            Officer Andrew Good testified he had been employed

since 2004 with the Champaign County sheriff's department.      Good

made the stop on the basis of the cherries obstructing the

windshield.    When he first observed defendant's car, Good was

approximately two car lengths behind defendant's vehicle.    Good

followed defendant less than a quarter mile before making the

stop.


                                 - 2 -
           On cross-examination, Good said as part of his patrol

duties he frequently makes traffic stops.    When he first observed

the vehicle, defendant was approaching Anthony Drive with his

turn signal on, but the car was not in the turn lane.    Defendant

turned off the turn signal and continued straight.    Defendant

then turned into a parking lot, drove through it, and then turned

onto Anthony Drive.   Good observed the vehicle from the rear and

the side and saw the cherries hanging from the rearview mirror.

Good observed the cherries were hanging at eye level, and from

Good's perspective the air freshener created a material obstruc-

tion of defendant's view of the roadway.

           On redirect, Good said he had not been formally trained

as to what constitutes a "material obstruction" of a driver's

view.   Good had read about "material obstructions" in law and

traffic books.   Good estimated the cherries were about two inches

across.   The air freshener could block the driver's view if a

vehicle or pedestrian emerged.    Good then looked at the photo-

graphs defendant had previously entered into evidence.    Looking

at the photographs of defendant's car with the cherries hanging

from the rearview mirror, Good said the view was not obstructed.

In the photographs, the lighting is daylight and sunny, but

during the stop it was dark outside.

           Officer Good was recalled by the State.   Good testified

after the stop had been made, defendant said he was on his way


                                 - 3 -
home from work and he and his passengers had been smoking canna-

bis.   Good noticed a green leafy substance on and around defen-

dant's mouth, and he smelled the odor of burnt cannabis.

           In argument, defense counsel maintained People v. Cole,

369 Ill. App. 3d 960, 874 N.E.2d 81 (2007), controlled, and

provided a copy to the court.    Defense counsel emphasized the

strand of beads in Cole was larger than an air freshener and yet

the court held there was no probable cause or reasonable suspi-

cion to make the stop.   Further emphasizing that a subjective

belief that a law has been broken, when no violation actually

occurred, is not objectively reasonable.    Upon conclusion of

arguments of counsel, the trial court granted the motion to

suppress evidence, reasoning as follows:

                "The issue before the [c]ourt is whether

           Officer Good had a reasonable suspicion that

           the [d]efendant had committed or was about to

           commit a crime. ***   The [c]ourt noted and

           finds extremely persuasive, *** the

           [d]efendant's testimony that Officer Good

           told him *** he was not supposed to have

           anything hanging from his rearview mirror[,

           which] was uncontroverted. ***

                The [c]ourt certainly does believe that

           this officer was acting in good faith, but


                                 - 4 -
          the [c]ourt does not believe that the cherry

          air freshener constituted a violation of the

          Vehicle Code (625 ILCS 5/12-503(c) (West

          2006)); and thus, a reasonable officer would

          not have reasonable suspicion to make the

          stop.   The cherry air freshener in question

          was certainly smaller than the 'fuzzy dice'

          that constituted a violation of People v.

          Mendoza[, 234 Ill. App. 3d 826, 599 N.E.2d

          1375 (1992)]. *** The cherries were also

          smaller than the two tree-shaped air freshen-

          ers in People v. Jackson[, 335 Ill. App. 3d

          313, 780 N.E.2d 826 (2002)].   Moreover, the

          cherries were mounted on a piece of wire and

          did not move or swing.   Even assuming the

          cherries were hanging at the [d]efendant's

          eye level, they still would not constitute a

          material obstruction ***."

This appeal followed.

                          II. ANALYSIS

          The State challenges the trial court's granting of

defendant's motion to suppress.    This court will reverse a trial

court's ruling on a motion to suppress where it involves credi-

bility assessments or factual determinations only if it is


                               - 5 -
manifestly erroneous or against the manifest weight of the

evidence.    People v. Driggers, 222 Ill. 2d 65, 70, 853 N.E.2d

414, 417 (2006); People v. Moss, 217 Ill. 2d 511, 517-18, 842

N.E.2d 699, 704 (2005).    We review de novo the ultimate ruling of

whether the evidence must be suppressed, assessing the facts in

relation to the issues presented.        Moss, 217 Ill. 2d at 518, 842

N.E.2d at 704.

            The State argues the key issue is whether Officer Good

had probable cause to justify the traffic stop of defendant's

vehicle based on a violation of the Illinois Vehicle Code (Vehi-

cle Code) (625 ILCS 5/12-503(c) (West 2006), not whether the

cherry air freshener constituted a material obstruction.       The

fourth amendment to the United States Constitution guarantees the

"right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures."

U.S. Const., amend. IV.    An automobile stop is subject to the

constitutional imperative that it be reasonable under the circum-

stances.    Whren v. United States, 517 U.S. 806, 810, 135 L. Ed.

2d 89, 95, 116 S. Ct. 1769, 1772 (1996).       "As a general matter,

the decision to stop an automobile is reasonable where the police

have probable cause to believe that a traffic violation has

occurred."     Whren, 517 U.S. at 810, 135 L. Ed. 2d at 95, 116 S.

Ct. at 1772.    The Vehicle Code states:

                  "No person shall drive a motor vehicle


                                 - 6 -
           with any objects placed or suspended between

           the driver and the front windshield, rear

           window, side wings or side windows immedi-

           ately adjacent to each side of the driver

           which materially obstructs the driver's

           view."   (Emphases added.)    625 ILCS 5/12-

           503(c) (West 2006).

To prove probable cause, the State need only show that it was

"reasonable" for Officer Good to conclude that the cherry air

freshener materially obstructed defendant's view.         United States

v. Dowthard, 500 F.3d 567, 569 (7th Cir. 2007).     Even if his

belief was incorrect, "[w]hen an officer makes a stop based on a

mistake of fact, we ask only whether the mistake was reasonable."

(Emphasis in original.)    United States v. McDonald, 453 F.3d 958,

962 (7th Cir. 2006).   Therefore, the only argument available to

defendant is the factual question of whether it was reasonable

for Officer Good to believe he observed defendant driving with a

"material obstruction" of defendant's view.      Dowthard, 500 F.3d

at 569.   Officer Good testified that he did.

           We give deference to the trial court's findings of

fact.   The court evaluated Officer Good's testimony, stating:

                "Officer Good did not tell the

           [d]efendant that only material[] obstructions

           were prohibited.   The [c]ourt realizes cer-


                                 - 7 -
          tainly that Officer Good did testify to that

          when he was in court, however it remains

          uncontroverted and uncontradicted[,] that he

          did not do so at the time of the stop."

          Defendant argued, and the trial court agreed, that the

facts in this case were substantially the same as in Cole, 369

Ill. App. 3d 960, 874 N.E.2d 81, where this court found the

officer made a mistake of law and therefore lacked probable cause

to make a traffic stop.    In Cole, the officer making the stop was

operating under a misunderstanding of the law that anything

suspended between the driver and the front windshield violated

the Vehicle Code.   The officer testified:

               "'Q. [By DEFENSE COUNSEL:] So, do you

          stop every vehicle that has something hanging

          between the driver and the windshield?

               A. [OFFICER:] Yes, sir.   If I can get a

          vehicle stopped, I do stop every vehicle.

                                * * *

               Q. Okay.    That's your opinion of the

          statute, is that the statute does not allow

          anything hanging in between the window, wind-

          shield and the driver?

               A. Yes.'"    Cole, 369 Ill. App. 3d at

          962, 874 N.E.2d at 83-84.


                                - 8 -
In this case, Officer Good testified he believed the object

created a material obstruction.   Defendant's testimony showed

Officer Good did not say the words "material obstruction" during

the stop.

            Defendant argues the trial court correctly found that a

reasonable officer would not have reasonable suspicion to stop

defendant's car based on the cherry air freshener attached to the

rearview mirror.   Defendant's exhibits show the cherry air

freshener in relation to the driver and the windshield, and the

trial court found "a reasonable officer would not have reasonable

suspicion to make the stop."   When Good was asked to look at

defendant's exhibit photographs, Good said, "from the picture,

there is nothing actually obstructed in that picture, no."    We

note the photographs entered into evidence were taken in bright

daylight from the view at each end of the car.   Good also testi-

fied he observed defendant's car in the dark from the rear and

side from about two car lengths' distance.    The trial court

differentiated the facts in cases finding larger air fresheners

or fuzzy dice to be violations of the Vehicle Code.   In Jackson,

335 Ill. App. 3d 313, 780 N.E.2d 826, the officer's testimony was

uncontroverted that the air freshener constituted a legal basis

for reasonable suspicion.   In Mendoza, 234 Ill. App. 3d 826, 599

N.E.2d 1375, the driver's view was obstructed by a fuzzy dice and

other items hanging from the rearview mirror.


                                - 9 -
            In Cole, the defendant was stopped because the officer

saw a single strand of opaque beads that were one-fourth of an

inch in diameter hanging four inches in length from the rearview

window at eye level. Cole, 369 Ill. App. 3d at 963, 874 N.E.2d at

84-85.   This court found a traffic stop based on a mistake of law

to be unconstitutional.    An officer "who mistakenly believes a

violation occurred when the acts in question are not prohibited

by law is not acting reasonably."    Cole, 369 Ill. App. 3d at 968,

874 N.E.2d at 88.

            We find the trial court's opinion that the officer did

not tell defendant the air freshener was a material obstruction

is entitled to deference and not against the manifest weight of

the evidence.    The photographs show the officer's belief, after a

fleeting view in the dark, that the cherries were a material

obstruction was not justifiable.    Further, the officer's lack of

understanding as to what constitutes a material obstruction was

no different from the situation in Cole.     The motion to suppress

is affirmed.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            APPLETON, P.J., and COOK, J., concur.




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