No. 2-13-0968 Opinion filed September 2, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 13-CF-670 ) JESUS GONZALEZ-CARRERA, ) Honorable ) George J. Bakalis, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶1 The State appeals the judgment of the circuit court of Du Page County granting defendant

Jesus Gonzalez-Carrera’s motion to suppress evidence found in his vehicle pursuant to a traffic

stop and denying the State’s motion to reopen the proofs. Because the State failed to establish a

valid basis for the traffic stop and because the trial court did not abuse its discretion in denying

the motion to reopen the proofs, we affirm.

¶2 I. BACKGROUND

¶3 Defendant was indicted on one count of unlawful possession with intent to deliver 900

grams or more of a controlled substance (cocaine) (720 ILCS 570/401(a)(2)(D) (West 2012)) and

one count of possession with intent to deliver 400 grams or more but less than 900 grams of a

controlled substance (methamphetamine) (720 ILCS 646/55(a)(1), (a)(2)(E) (West 2012)). He

was also charged by traffic citation with violating section 12-201(b) of the Illinois Vehicle Code

(Vehicle Code) by “driving with one red tail light” (625 ILCS 5/12-201(b) (West 2012)).

¶4 Defendant moved to suppress evidence found in his vehicle, contending that the arresting

officer lacked probable cause to stop his vehicle for a traffic violation. On July 26, 2013, the

trial court conducted an evidentiary hearing. At the hearing, Deputy Bata of the Du Page

County sheriff’s office testified that on March 27, 2013, at around 3:40 p.m., he observed

defendant’s pickup truck traveling east on Army Trail Road. Deputy Bata was driving east in

the adjacent lane and was “slightly behind and to the left of [defendant’s vehicle].”

¶5 When defendant activated his brake lights a “white light emitted from the [left] rear

taillight.” Deputy Bata described the taillight as having a “hole” the size of a “couple inches”

in the red plastic covering, allowing white light to be visible. The taillight emitted both red and

white light when the brakes were activated. He estimated that he was about 10 feet from the

rear of defendant’s vehicle when he observed the taillight emit both red and white light.

¶6 On that basis, Deputy Bata stopped defendant. He issued defendant a traffic citation for

a violation of section 12-201(b) of the Vehicle Code. The citation indicated, among other

things, that it was daytime, that the roadway was dry, and that the visibility was clear. None of

the boxes that indicated rain, fog, or snow were marked. No other witnesses testified at the

hearing.

¶7 In ruling on the motion to suppress, the trial court referred to section 12-201(b)’s

requirement that a vehicle must have two taillights that emit red light that is visible for at least

500 feet. Thus, the court ruled that the dispositive issue was whether there was any evidence

that either of the taillights on defendant’s vehicle did not emit a red light that was visible for at

least 500 feet. The court found that, because there was “no evidence that [those] lights failed to

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throw a red light visible for at least 500 feet,” there was no violation of section 12-201(b).

Therefore, because the stated basis for the traffic stop was invalid, the court granted the motion

to suppress.

¶8 On August 19, 2013, the State filed a motion to reopen the proofs. The State asserted in

its motion that, approximately 20 minutes before Deputy Bata made the traffic stop, defendant

had received approximately four kilograms of cocaine and one pound of methamphetamine as

part of a controlled delivery. After the delivery, he left in his pickup truck. The State claimed

that defendant’s involvement in the controlled delivery provided an alternative basis for the

traffic stop.

¶9 At the hearing on the motion to reopen the proofs, the State asserted that, after it notified

an investigator in the sheriff’s office that the motion to suppress had been granted, it was

informed by a supervisor from Homeland Security that at the time of the traffic stop they had

been investigating defendant for drug trafficking. According to the State, it had no idea that

such an investigation existed, Deputy Bata never mentioned such an investigation, and it never

thought to ask Deputy Bata about such an investigation. When asked by the court if Deputy

Bata was aware of the investigation, the State responded that it did not know. According to the

State, it had not been able to reach Deputy Bata because it did not have his cell phone number.

¶ 10 In denying the motion to reopen the proofs, the trial court found that, based on the State’s

assertions, there was no indication that Deputy Bata knew about the drug investigation at the

time of the traffic stop and there was no basis to impute the knowledge of the Homeland Security

investigators to Deputy Bata. When the State asked if it could have time to contact Deputy

Bata, the court responded that, even if Deputy Bata came in a week later and testified that he

knew about the drug investigation when he stopped defendant, it would not change its ruling.

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The court explained that, if the State had not yet discovered what Deputy Bata knew, it was “not

going to keep doing this.”

¶ 11 On September 6, 2013, the State filed a motion to reconsider the denial of the motion to

reopen the proofs. In support of the motion to reconsider, it asserted that it had learned that

Deputy Bata knew about the drug investigation and the controlled delivery before he made the

traffic stop. The trial court responded that it found it “almost impossible to understand” why

Deputy Bata did not reveal that knowledge to the State when he was being prepped for the

hearing on the motion to suppress or to the court when he was asked under oath what the basis

was for the stop. When the State suggested that Deputy Bata did not do so because he had been

instructed by Homeland Security not to reveal the investigation, the court responded that Deputy

Bata had “an obligation” to do so and that he could not “get up under oath and basically lie ***

that he had no other basis to stop the vehicle.” Thus, the court denied the motion to reconsider.

The State then filed this timely appeal. 1

¶ 12 II. ANALYSIS

¶ 13 On appeal, the State contends that there was a violation of section 12-201(b) of the

Vehicle Code, which was a valid basis for the traffic stop. Alternatively, the State posits that it

could have established a valid alternative basis for the stop had the trial court not abused its

discretion in denying the motion to reopen the proofs.

¶ 14 A. Motion to Suppress

1 Defendant contends that the notice of appeal was untimely, because the motion to reopen

the proofs and the motion to reconsider did not extend the time to appeal. Defendant previously

filed an emergency motion to dismiss the appeal raising the same argument, and we denied that

motion. We stand by that ruling.

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¶ 15 On review of a ruling on a motion to suppress, the trial court’s factual findings are

reviewed for clear error, giving due weight to any inferences drawn from the facts, and reversal

is warranted only when those findings are against the manifest weight of the evidence. People

v. Hackett,

. However, a reviewing court remains free to assess the facts

in relation to the issues and draw its own conclusions when deciding what relief should be

granted.

A trial court’s decision as to whether the motion to suppress should be granted is

a legal one that is subject to de novo review.

We may affirm the decision on any basis in

the record. People v. Keys,

(2007).

¶ 16 Vehicle stops must be reasonable under the fourth amendment. Hackett,

. Generally, the stop of a vehicle is reasonable if the police have probable cause to

believe that a traffic violation has occurred.

However, the less exacting standard of

reasonable, articulable suspicion that justifies an investigatory stop also will suffice to stop a

vehicle in certain circumstances.

Therefore, depending on the situation, an officer’s

degree of suspicion need not rise to the level of probable cause to justify a traffic stop.

The difference in the two standards might or might not be relevant, depending on the particular

facts of the case and the specific traffic violation at issue.

For example, where the basis

for the traffic stop is a violation of a provision of the Vehicle Code that requires proof of

additional facts not ascertainable without stopping the vehicle, then reasonable suspicion that the

provision has been violated would be sufficient to justify the stop. Id. ¶¶ 27-28 (holding that a

violation of section 11-709(a) (625 ILCS 5/11-709(a) (West 2008)), which requires proof that the

defendant deviated from his lane of travel without the road conditions causing him to do so,

might require further investigation by the officer after the stop to determine the reason for the

lane deviation).

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¶ 17 In our case, according to Deputy Bata’s testimony at the hearing, the basis for the traffic

stop was a violation of section 12-201(b) of the Vehicle Code. That section provides, in

relevant part, that all motor vehicles other than motorcycles must have at least two headlights,

which must be illuminated “from sunset to sunrise, at times when rain, snow, fog, or other

atmospheric conditions require the use of windshield wipers, and at any other times when, due to

insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are

not clearly discernible at a distance of 1000 feet.” 625 ILCS 5/12-201(b) (West 2012).

Section 12-201(b) also requires all motor vehicles other than motorcycles to “exhibit at least 2

lighted lamps, commonly known as tail lamps, which shall be mounted on the left rear and right

rear of the vehicle so as to throw a red light visible for at least 500 feet in the reverse direction.”

Pursuant to section 12-201(c), a vehicle’s taillights must be illuminated whenever the

headlights are on. 625 ILCS 5/12-201(c) (West 2012).

¶ 18 Although the parties and the trial court focused on whether defendant’s lights satisfied

section 12-201(b), that provision did not apply under the facts that existed at the time of the stop.

According to Deputy Bata, he stopped defendant’s vehicle at around 3:40 p.m. on March 27, 2013.

That is, the stop did not occur between sunset and sunrise. 2 Nor was there any evidence that any

of the other conditions under section 12-201(b) existed. To the contrary, the traffic citation

indicated that it was daytime, that the road was dry, and that the visibility was clear. The

indicators on the citation for rain, snow, and fog were not marked. Nor was there any other

evidence that visibility was limited at the time of the stop. Therefore, because there was no

2 On March 27, 2013, in the Chicago area, the United States Naval Observatory official

sunrise was 6:42 a.m., and official sunset was 7:11 p.m. http://aa.usno.navy.mil/data/docs/

RS_OneYear.php (Form A) (last visited July 28, 2014).

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showing that any of the conditions that required the use of two red taillights under section

12-201(b) existed at the time of the stop, there could have been no violation of that provision,

regardless of whether the left taillight emitted a white light. Although the trial court correctly

found that the State did not provide any evidence that defendant’s taillights violated section

12-201(b), we need not even reach this question in light of the fact that there was no showing that

the section required the use of taillights at all. Thus, the State failed to establish that Deputy Bata

had either reasonable suspicion or probable cause that section 12-201(b) was being violated when

he stopped defendant’s vehicle. 3

¶ 19 Although our analysis differs somewhat from that of the trial court, we may affirm its

judgment on any basis in the record. See Keys,

. Because the record

does not reflect a valid basis for the traffic stop, the motion to suppress the evidence was

properly granted.

¶ 20 B. Motion to Reopen the Proofs

¶ 21 We turn next to the issue of whether the trial court properly denied the State’s motion to

reopen the proofs. Generally, a court has the authority to allow a litigant to reopen its case

under appropriate circumstances. People v. Hopson,

. Even

after the State has rested its case, the court has discretion to allow it to put on more evidence.

The exercise of that discretion will not be reversed without a clear showing of abuse.

Factors to consider in this analysis include: (1) whether the failure to introduce the evidence was

inadvertent; (2) any surprise or unfair prejudice to the other party; (3) the importance of the new

3 Because we have held that section 12-201(b) was not applicable under the facts of this

case, we need not decide whether People v. Girot,

, was correctly

decided.

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evidence; and (4) whether there were cogent reasons that justified denying the motion to reopen.

A motion to reopen may be granted even after the court has ruled on a motion to suppress.

See, e.g., id.; People v. Ward,

(2002). However, when a party does not

seek to reopen the proofs until after the court’s ruling, the court is within its discretion to deny

the motion. See People v. Beverly,

(2006) (“The State was not

entitled to a postruling opportunity to cure court-identified flaws in its case.”).

¶ 22 In this case, well after the trial court had already ruled on the motion to suppress, the State

sought to reopen the proofs so that it could establish an entirely different basis for the traffic stop

than the basis it initially had asserted. This type of posthearing switcheroo is not an appropriate

use of a motion to reopen proofs. In the cases cited by the State, the evidence that was the subject

of the motion to reopen proofs was relevant to the theory previously argued at the hearing. See,

e.g., Ward,

(evidence regarding the reliability of the informant); People v.

Benoit,

(1992) (evidence regarding whether defendant invoked right to

counsel); see also Hopson,

(evidence regarding police officer’s

ability to recognize marijuana). The State cites no authority, and we are not aware of any, that

would allow it, after unsuccessfully responding on one basis to a motion to suppress, to come into

court and attempt to establish an entirely different justification for the seizure. It is one thing to

allow a party, under limited circumstances, to introduce evidence to support its original theory or

claim because it inadvertently failed to do so. It is an entirely different matter to give a losing

litigant a second bite at the apple by allowing it to argue an alternative basis for relief after it lost on

its original basis. Cf. Barth v. Kantowski,

(2011) (a party may not raise

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a new legal argument in a motion to reconsider). That is well beyond the relief contemplated by a

motion to reopen proofs. 4

¶ 23 Moreover, even if a motion to reopen the proofs were available under the circumstances

of this case, the trial court did not abuse its discretion in light of the relevant factors. First,

there was no inadvertence on the part of the State. It did not mistakenly fail to introduce

evidence that it intended to introduce at the hearing. Rather, it was apparently oblivious to the

existence of the evidence regarding the drug investigation and the controlled delivery. Second,

defendant certainly would have been surprised by evidence relating to a basis for the stop that

was entirely new and not apparent from the facts of the case as indicated in discovery, reflected

by the State’s original theory, or developed at the hearing. Finally, though the new evidence

was important to the State’s case (given that it had lost on its prior theory), there were cogent

reasons for denying the motion to reopen the proofs. The most important was that the State had

not asserted whether Deputy Bata knew of the purported drug investigation or controlled buy

when he stopped defendant’s vehicle or whether there was any basis to impute the knowledge of

the Homeland Security investigators to Deputy Bata. Moreover, it was apparent to the court

that, if what the State asserted was true, Deputy Bata had been less than truthful when he

testified that his basis for the stop was the traffic violation. Under the circumstances as

presented to the court, and in light of the four factors, it was not a clear abuse of discretion to

deny the motion to reopen the proofs.

4 It would also open the door to sandbagging. “Sandbagging” is a concealing or

misrepresenting of one’s true position or intent in order to take advantage of an opponent.

Merriam Webster’s Collegiate Dictionary 1032 (10th ed. 2001). We do not suggest that the State

attempted to sandbag defendant in this case.

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¶ 24 Finally, we recognize that the State filed a motion to reconsider the denial of the motion

to reopen the proofs. In doing so, it asserted that it had learned since the denial of the motion to

reopen the proofs that Deputy Bata had in fact known about the drug investigation and controlled

buy before he stopped defendant’s vehicle.

¶ 25 A ruling on a motion to reconsider based on new matters not previously presented is

reviewed for abuse of discretion. People v. Pollitt,

. Here,

there was no abuse of discretion in denying the motion to reconsider, because, as we have

already explained, there was no proper basis for a motion to reopen the proofs. That is so

regardless of whether the State could show that there was a different basis for the traffic stop.

Moreover, as the trial court properly noted, the State failed to show why it could not have

ascertained the extent of Deputy Bata’s knowledge before it presented the motion to reopen the

proofs. The court did not abuse its discretion in putting an end to the State’s piecemeal

approach.

¶ 26 As a final note, we are compelled to make the following observation. Honesty and

candor between law enforcement officers and prosecutors is essential to the fair administration of

justice. If an ongoing investigation is in jeopardy of being derailed because of an ongoing

prosecution, there are legal options available to postpone the disclosure, so long as the

defendant’s rights are not compromised. In short, lying under oath is never an option.

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 29 Affirmed.

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