THIRD DIVISION
February 13, 2002

Following a bench trial, defendant Bernard Bunch wasconvicted of possession of a controlled substance and sentencedto four years in prison. Defendant's motion to quash his arrestand suppress evidence, heard simultaneously with his trial, wasdenied. On appeal, defendant contends that the trial court erredin denying the motion to suppress. We reverse.

FACTS

Officer Daniel Lukensmeyer testified that at approximately1:10 a.m. on February 2, 2000, he was on patrol alone in a markedpolice vehicle when he observed a 1990 Pontiac automobile near35th Street and Wentworth Avenue in Chicago. He saw the driverof that vehicle slow down and come to a stop but did not see thevehicle's brake lights activate when they should have. Theofficer initiated a traffic stop by following the vehicle andflashing his emergency lights. As he projected his high-beamheadlights into the vehicle, he saw the driver lean forward twicetoward the dashboard. When the vehicle stopped, the officerapproached the driver, defendant's brother, and subsequentlyarrested him for driving without a license. At some point duringthe arrest, the driver informed the officer that he owned thevehicle.

The officer, after handcuffing the driver, walked to thepassenger side and instructed the defendant to get out of the carand wait at the rear while he took charge of the vehicle.

Standing about one foot apart, the officer and defendantengaged in a conversation in which the officer asked defendantsome questions, including his name and where he was coming from. The officer testified he was "curious to find out exactly who hewas." Defendant then asked why the driver was arrested. As theyspoke, the officer shined his flashlight on defendant's face, ashe normally did when working at night. A few seconds into theconversation, the officer saw a small clear plastic objectcontaining white material inside defendant's mouth, and then sawit a second time. Based on his 35 years' experience as a policeofficer and more than 2,000 narcotics arrests, the officersuspected that the object was a bag containing heroin or cocaine.

The officer arrested defendant and ordered him toexpectorate the object; defendant complied. The object was aplastic bag containing white material later confirmed to beheroin. After calling for assistance, the officer investigatedthe interior of the vehicle and retrieved two plastic bagscontaining white powder from a void in the dashboard. Theofficer testified that defendant then made an unsolicitedstatement that "[a]ll the heroin you found is mine." Whenassistance arrived, the officer tested the brake lights of thevehicle and discovered that they were working properly.

Defendant was later charged by information with possessionof less than 15 grams of a controlled substance based on theplastic bag of heroin found in his mouth.

After hearing the officer's testimony and defendant'sargument on his motion to quash arrest and suppress evidence, thecourt denied the motion and defendant's trial continued.

Defendant testified to a different version of events. Hesaid the officer did not mention or examine the vehicle's brakelights, but told defendant's brother that he stopped them"because [he] saw two black men in the car." After the driverwas arrested, the officer told defendant to exit the vehicle,handcuffed him and placed him inside the police car, saying thehandcuffs were for the officer's personal safety. Defendanttestified that he did not have anything in his mouth and did notspit anything out. The officer then removed a black case fromthe trunk of the police car and carried it into the vehicle thatdefendant had exited. Defendant testified that he never told theofficer that the narcotics in the vehicle were his, and that hehad no narcotics on that date.

DECISION

Defendant contends the officer had no legal justificationfor stopping and questioning him, and no probable cause for hisarrest.

When, as here, a defendant challenges neither the trialcourt's findings of fact nor its determination of witnesscredibility, a ruling on a motion to suppress is reviewed denovo. People v. Mendez, 322 Ill. App. 3d 103, 109, 749 N.E.2d391 (2001). In presenting a motion to suppress, the defendantbears the burden of establishing that the search or seizure wasunreasonable or unlawful. People v. Juarbe, 318 Ill. App. 3d1040, 1049, 743 N.E.2d 607 (2001).

Initially, the State argues that defendant lacks standing tochallenge the stop because he did not own or have a possessoryinterest in the vehicle. The State concedes that defendant had asubjective expectation of privacy while in the vehicle, butcontends that his expectation is not controlling, pursuant toPeople v. Johnson, 114 Ill. 2d 170, 192, 499 N.E.2d 1355 (1986).

We disagree. We find defendant's liberty was infringed whenhe was an occupant of a vehicle stopped by the police andtherefore he has standing to challenge the stop. People v.Fullwiley, 304 Ill. App. 3d 44, 49, 710 N.E.2d 491 (1999); seealso People v. Kunath, 99 Ill. App. 3d 201, 205, 425 N.E.2d 486(1981).

Defendant contends the stop was illegal because the officerwas mistaken about the vehicle's brake lights not working.Generally, a short investigatory stop for a minor trafficviolation is considered an exception to the warrant requirementunder Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88S. Ct. 1868, 1880 (1968). Juarbe, 318 Ill. App. 3d at 1049.

To comport with the requirements of the fourth amendment,Terry stops are permissible only if there is "a reasonablesuspicion based on specific and articulable facts that the personhas committed, or is about to commit, a crime." People v.Brownlee, 186 Ill. 2d 501, 518, 713 N.E.2d 556 (1999). A Terrystop is reasonable only if it was (1) justified at its inceptionand (2) reasonably related in scope to the circumstances thatjustified the detention in the first place. Brownlee, 186 Ill.2d at 518-19.

An officer has a right and a duty to stop an automobilewithout brake lights. People v. Cannon, 18 Ill. App. 3d 781,785, 310 N.E.2d 673 (1974). See 625 ILCS 5/12-208(a) (West 2000)(every vehicle shall have a red or amber stop lamp which shall beactuated upon application of the foot brake). When an officer ismistaken about what he has observed, the test is not what theofficer should have seen but whether a reasonable and prudentperson would believe that a crime had been committed whenobjectively viewing the facts and circumstances known to theofficer at the time. People v. Assenato, 186 Ill. App. 3d 331,337, 542 N.E.2d 457 (1989) (stop based on an officer's mistakenbelief that vehicle lacked valid license plate was proper); seePeople v. Bradi, 107 Ill. App. 3d 594, 437 N.E.2d 1285 (1982)(evidence was admissible where stop was based on the officer'smistaken belief and the officer later saw the passenger throw abag containing a white powdery substance on the ground.)

Here, the judge apparently believed Officer Lukensmeyer hadobserved a traffic violation, although the officer's testimonyabout his reason for stopping the car is vague at best. We notethe State does not seek to justify the stop of the car in itsbrief on appeal, apparently because of its mistaken impressionthat the defendant cannot challenge the stop of the car. SeeKunath, 99 Ill. App. 3d at 205-06. Reluctantly, we accept thetrial judge's conclusion.

Events that took place after the stop of the car persuade usthe arrest of the defendant violated the Fourth Amendment.

The defendant was a passenger. While in the car he did andsaid nothing that would create the suspicion he was engaging incriminal activity or was a threat to the officer. The driver ofthe car had been secured and handcuffed. It was then that theofficer ordered the defendant out of the car and instructed himto walk to the rear of it. Lukensmeyer then began asking thedefendant questions because he was "curious to find out who hewas." It was after those questions were asked that the defendantasked his own question, in the process opening his mouth andexposing the plastic bag. The arrest and order to spit outfollowed.

These events are strikingly similar to those in People v.Gonzalez, 324 Ill. App. 3d 15, 753 N.E.2d 1209 (2001). There, ashere, the initial traffic stop was assumed to be valid. Whilesitting in the car the defendant, a passenger, was asked toidentify himself. After he did so, and after the officer learnedthe defendant was a gang member, the defendant was ordered out ofthe car and taken to the rear of it. According to the officer,the defendant then gave permission to be searched. Cocaine wasfound.

The court held the officer did not have a lawful basis toask the defendant for identification. The reason applies equallyhere: "...because Officer McCarthy did not suspect defendant ofany criminal activity." Gonzalez, 324 Ill. App. 3d at 18. Thecourt held everything that flowed from the unlawful detention wastainted and ought to be suppressed.

The point made in Gonzalez -- that a police officer has tohave some lawful authority to ask a defendant for identification-- also was made in People v. Branch, 295 Ill. App. 3d 110, 692N.E.2d 398 (1998).

In this case, the officer did more than ask foridentification. He ordered the defendant out of the car and tothe rear of it because he was "curious." The defendantsubmitted. We believe the defendant was detained at that pointwithout lawful authority. Curiosity is not a good reason todetain. Everything that flowed directly from that unlawfuldetention must be suppressed. See Brownlee, 186 Ill. 2d at 518-19.

There is another reason to sustain the defendant's motion tosuppress. When Lukensmeyer saw the plastic bag in thedefendant's mouth he arrested the defendant. It was not a Terrysearch. It was a probable cause arrest. The officer testifiedhe made the arrest because "I had my suspicions that it washeroin or cocaine, one or the other." Suspicions, no matter howreasonable, do not add up to probable cause to arrest. SeeAlabama v. White, 496 U.S. 325, 330, 110 L. Ed.2d 301, 309, 110S.Ct. 2412, 2416 (1990). See also People v. Kidd, 175 Ill. 2d 1,22, 675 N.E.2d 910 (1996) (Mere suspicion is not adequate toestablish probable cause.).

CONCLUSION

Based on our de novo review, we reverse the trial court'sorder denying the defendant's motion to suppress. Since theheroin that was in the defendant's mouth was the only evidenceagainst him there is no reason to remand this cause.

Reversed.

HALL, P.J., and SOUTH, J., concur.