{ "id": 4299477, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE MARSHALL, Defendant-Appellant", "name_abbreviation": "People v. Marshall", "decision_date": "2010-03-23", "docket_number": "No. 1\u201408\u20141242", "first_page": "626", "last_page": "636", "citations": [ { "type": "official", "cite": "399 Ill. App. 3d 626" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "634 N.E.2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5371873 ], "year": 1994, "pin_cites": [ { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/1050-01" ] }, { "cite": "917 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 13, "year": 2009, "pin_cites": [ { "page": "590" }, { "page": "591" }, { "page": "591" }, { "page": "591" }, { "page": "591" }, { "page": "591" }, { "page": "592" }, { "page": "592" }, { "page": "594" }, { "page": "595" }, { "page": "594-95", "parenthetical": "noting FBI statistics that stopping on or near a highway is one of the most dangerous aspects of police work" }, { "page": "596" } ], "opinion_index": 0 }, { "cite": "395 Ill. App. 3d 194", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291608 ], "weight": 13, "year": 2009, "pin_cites": [ { "page": "195" }, { "page": "195" }, { "page": "195" }, { "page": "196" }, { "page": "196" }, { "page": "196" }, { "page": "196" }, { "page": "197" }, { "page": "199-200" }, { "page": "200" }, { "page": "200" }, { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/395/0194-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "554" }, { "page": "509" }, { "page": "1877" } ], "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "898 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "611" } ], "opinion_index": 0 }, { "cite": "231 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3617207 ], "year": 2008, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0262-01" ] }, { "cite": "815 N.E.2d 965", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "970", "parenthetical": "police officer \"asserted authority by activating his emergency lights\" because a reasonable person \"would not have felt free to ignore the [police] officer and enter the house or walk away\"" }, { "page": "970", "parenthetical": "rejecting the argument that no seizure occurred because the defendant had stopped and exited his car before noticing the police emergency lights; rather, the defendant had \"submitted to them and did not leave\"" }, { "page": "970" }, { "page": "970" } ], "opinion_index": 0 }, { "cite": "352 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5455119 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "220", "parenthetical": "police officer \"asserted authority by activating his emergency lights\" because a reasonable person \"would not have felt free to ignore the [police] officer and enter the house or walk away\"" }, { "page": "220" }, { "page": "220" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/0216-01" ] }, { "cite": "501 U.S. 429", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108039 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "434" }, { "page": "398" }, { "page": "2386" } ], "opinion_index": 0, "case_paths": [ "/us/501/0429-01" ] }, { "cite": "857 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2006, "pin_cites": [ { "page": "196" }, { "page": "199" }, { "page": "200" }, { "page": "201" }, { "page": "191", "parenthetical": "police officer questioned the defendant about why he was there and asked for his identification" } ], "opinion_index": 0 }, { "cite": "222 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602037 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "544" }, { "page": "550" }, { "page": "550" }, { "page": "552" }, { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0530-01" ] }, { "cite": "906 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "59-60" }, { "page": "60", "parenthetical": "what separates a consensual encounter from an investigative detention is whether the police officer's conduct conveyed a means of physical force or a show of authority such that the defendant's freedom of movement was restrained" }, { "page": "60", "parenthetical": "a factor that tends to support a finding of non-consensual seizure is \" ' \"the use of language or tone of voice indicating that compliance with the police officer's request might be compelled\" ' \"" } ], "opinion_index": 0 }, { "cite": "389 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4284735 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "287" }, { "page": "287" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/389/0283-01" ] }, { "cite": "882 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "1136-37" } ], "opinion_index": 0 }, { "cite": "379 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276282 ], "year": 2008, "pin_cites": [ { "page": "129-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/379/0116-01" ] }, { "cite": "737 N.E.2d 169", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "192 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453266 ], "year": 2000, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0437-01" ] }, { "cite": "738 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "566" }, { "page": "566" } ], "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096544 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "913" }, { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0901-01" ] }, { "cite": "648 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "221" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249227 ], "year": 1995, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0097-01" ] }, { "cite": "660 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "27" }, { "page": "28" } ], "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172446 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "127" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0123-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687-94" }, { "page": "693-97" }, { "page": "2064-68" }, { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 9, "year": 1968, "pin_cites": [ { "page": "21" }, { "page": "906" }, { "page": "1880" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] } ], "analysis": { "cardinality": 1007, "char_count": 26834, "ocr_confidence": 0.782, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14468700684866184 }, "sha256": "c7d951c4c6c4ff2d3c228c4e8d9b12b1d63dfc6d603220397d268106ac4a4f64", "simhash": "1:8acab42b175b99a0", "word_count": 4425 }, "last_updated": "2023-07-14T20:57:29.923092+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE MARSHALL, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE CUNNINGHAM\ndelivered the opinion of the court:\nFollowing a bench trial in the circuit court of Cook County, the defendant, Willie Marshall, was convicted of one count of felony driving on a revoked license (625 ILCS 5/6 \u2014 303(a) (West 2006)) and sentenced to two years of imprisonment. On appeal, the defendant argues that: (1) defense counsel was ineffective for failing to file a motion to suppress evidence; and (2) a line of questioning posed by the trial court to the State\u2019s sole witness was improperly biased against the defendant. For the following reasons, we reverse the judgment of the circuit court of Cook County and vacate the defendant\u2019s sentence.\nBACKGROUND\nOn November 19, 2007, the defendant was arrested and later charged with four counts of felony driving while his driver\u2019s license was revoked. On March 6, 2008, a bench trial was held during which two witnesses testified to the events leading up to the defendant\u2019s arrest.\nThe State presented the testimony of one witness, Chicago police officer Joseph Vanourek (Officer Vanourek). Officer Vanourek testified that on November 19, 2007, at approximately 6:20 p.m., he and his partner, Officer Bielema, were traveling westbound in a police vehicle near 1610 West Fargo Avenue in Chicago, Illinois. Officer Vanourek observed the defendant driving a white Cadillac (white car) about 100 feet away, directly in front of Officer Vanourek\u2019s police vehicle. A female passenger was seated in the passenger seat of the white car. Officer Vanourek testified that the white car was initially in a \u201cregular lane of traffic,\u201d but then it pulled over to the right curb lane and \u201cparked in a \u2018[no parking]\u2019 zone along the curb,\u201d where a \u201cNo Parking\u201d sign was posted. Based on this observation, Officer Vanourek maneuvered the police vehicle to the right curb, \u201cpulled [up] behind the [white car]\u201d and turned on the flashing lights of the police vehicle to \u201cconduct a traffic stop.\u201d Officer Vanourek then exited the police vehicle and approached the defendant, who was sitting in the driver\u2019s seat of the white car. When Officer Vanourek asked the defendant for a driver\u2019s license and proof of car insurance, the defendant was only able to produce a state identification card. A name check of the state identification card revealed that the defendant\u2019s driving privileges were revoked for driving under the influence (DUI). At that point, Officer Vanourek arrested the defendant and the white car was then towed.\nLater at a police station, the defendant informed the police officers that he knew that his driver\u2019s license had been revoked. Officer Vanourek issued four traffic citations to the defendant, including one for parking in a \u201cno parking\u201d zone and one for failing to carry car insurance.\nOn cross-examination, Officer Vanourek stated that approximately 20 to 25 seconds had occurred between the time he first observed the white car to the time that the defendant pulled over to the \u201cno parking\u201d zone. During this short period of time, Officer Vanourek did not observe any traffic law violations being committed by the defendant. Within seconds after the white car had stopped in the \u201cno parking\u201d zone, Officer Vanourek\u2019s police vehicle pulled up behind the white car. Officer Vanourek noted that both he and Officer Bielema approached the defendant\u2019s white car.\nKaren Aikens testified on behalf of the defendant, in support of a defense theory of necessity. She stated that she had known the defendant for 14 years. Aikens testified that on November 19, 2007, at approximately 6:20 p.m., she was driving the white car, with the defendant riding as a passenger, when she suffered an onset of acid reflux. At that point, Aikens pulled over to the side of the road. Aikens stated that during an acid reflux episode, she would be \u201c[unable] to function or do anything until it passe[d],\u201d and that it would not be safe for her to operate a vehicle. When Aikens stopped the white car, the defendant \u201cswitched seats\u201d with Aikens because the defendant had wanted to take her to a hospital. However, at no point did the defendant operate the white car. Shortly thereafter, a police vehicle arrived because the white car was in a \u201cno parking\u201d zone. Aikens then informed the police officers of her illness. On cross-examination, Aikens stated that after the defendant was arrested and the white car towed, she walked to nearby public transportation and went home.\nAt this point during the bench trial, the trial court asked Aikens the following questions:\n\u201cTHE COURT: But you weren\u2019t in the driver\u2019s seat?\n[AIKENS]: No, because we switched over.\nTHE COURT: When?\n[AIKENS]: When I pulled in the parking space. [The defendant] was like, I want to take you to the hospital, whatever, just he jumped out over, and I slid over, and I start bending down because the pain is so hard. I just started sitting in the chair like this. And that\u2019s when [the police] came and opened the door.\u201d\nIn rebuttal, the State recalled Officer Vanourek to the witness stand. Officer Vanourek testified that he did not observe the woman in the white car switch seats with the defendant. The trial court then engaged in the following exchange with Officer Vanourek:\n\u201cTHE COURT: You followed the [white] car 100 or 200 feet?\n[OFFICER VANOUREK]: Yes, sir.\nTHE COURT: You could see who was driving the car?\n[OFFICER VANOUREK]: Yes, sir.\nTHE COURT: No doubt in your mind?\n[OFFICER VANOUREK]: There is no doubt. There was a pretty good size disparity between the man and the woman, and it was clearly him.\nTHE COURT: You pulled up to the [white] car and when you got to the [white] car \u2014 how soon did you get to the [white] car after it pulled into the [n]o [p]arking space?\n[OFFICER VANOUREK]: Within five to ten seconds.\nTHE COURT: You went right to the driver\u2019s side?\n[OFFICER VANOUREK]: Yes, sir.\u201d\nOn cross-examination during the State\u2019s rebuttal, Officer Vanourek noted that he could \u201crecognize the broad shoulders of a man versus that of a female.\u201d Officer Vanourek testified that he observed the white car during \u201cdusk\u201d and that streetlights illuminated the area. At no time prior to approaching the white car in the \u201cno parking\u201d zone did Officer Vanourek have the benefit of a \u201cprofile view\u201d or a \u201chead-on view\u201d of the white car. Instead, Officer Vanourek\u2019s sole vantage point of the white car, while it was being driven on the road, was from behind the white car.\nThe trial court then asked Officer Vanourek the following questions:\n\u201cTHE COURT: You asked the defendant for his driver\u2019s license and proof of insurance?\n[OFFICER VANOUREK]: Yes, sir.\nTHE COURT: And he told you what?\n[OFFICER VANOUREK]: He didn\u2019t say anything at the time. He just \u2014 he produced a state ID. But he said he didn\u2019t have insurance and he did not present proof of insurance.\nTHE COURT: Did he ever tell you he wasn\u2019t driving?\n[OFFICER VANOUREK]: I don\u2019t recall that if he said to me, T wasn\u2019t driving.\u2019 I mean, I saw him driving.\nTHE COURT: Well, did he or didn\u2019t he?\n[OFFICER VANOUREK]: I don\u2019t recall him saying that.\nTHE COURT: There was no conversation as to whether he was driving the car or she was driving the car?\n[OFFICER VANOUREK]: No. There was no conversation about that.\u201d\nAfter the parties\u2019 closing arguments, the trial court found the defendant guilty of one count of felony driving on a revoked license. 625 ILCS 5/6 \u2014 303(a) (West 2006).\nOn April 11, 2008, the defendant filed a motion for a new trial. On April 21, 2008, the trial court denied the motion for a new trial and sentenced the defendant to two years of imprisonment. The trial court also denied the defendant\u2019s motion to reconsider sentence, which argued that the defendant\u2019s two-year sentence was excessive in view of the defendant\u2019s background and the nature of the offense. On May 2, 2008, the defendant filed a notice of appeal before this court.\nANALYSIS\nWe determine the following issues: (1) whether defense counsel was ineffective for failing to file a motion to suppress evidence; and (2) whether questions posed by the trial court to the State\u2019s witness improperly biased the defendant.\nWe first determine whether defense counsel was ineffective for failing to file a motion to suppress evidence.\nThe defendant argues that defense counsel provided ineffective assistance of counsel because he failed to file a motion to suppress evidence of the defendant\u2019s revoked license, which was obtained as a result of an unlawful seizure under the fourth amendment. U.S. Const., amend. IV; Ill. Const. 1970, art. I, \u00a76. Specifically, the defendant contends that Officer Vanourek lacked statutory or constitutional grounds to conduct a Terry stop. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Thus, the defendant argues, defense counsel did not use sound trial strategy because challenging the unlawful stop was the defendant\u2019s best defense.\nOn the other hand, the State argues that Officer Vanourek\u2019s encounter with the defendant was consensual in nature and did not amount to a seizure under the fourth amendment. Instead, the State argues that the defendant had voluntarily stopped the white car prior to Officer Vanourek\u2019s arrival behind the white car, and, other than activating the police vehicle\u2019s overhead lights, Officer Vanourek did nothing that would have made a reasonable person feel as though his freedom was restrained. Therefore, the State argues, the encounter did not trigger fourth amendment protections and a motion to suppress evidence would have had no chance of success and, thus, defense counsel was not ineffective.\nTo successfully establish a claim of ineffective assistance of counsel, the defendant: (1) must prove that the attorney\u2019s performance fell below an objective standard of reasonableness so as to deprive him of the right to counsel under the sixth amendment (performance prong); and (2) that this substandard performance resulted in prejudice (prejudice prong). Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-97, 104 S. Ct. 2052, 2064-68 (1984). Under the performance prong, the defendant must overcome a \u201c \u2018strong presumption that [defense] counsel\u2019s complained-of action was merely trial strategy.\u2019 \u201d People v. Steels, 277 Ill. App. 3d 123, 127, 660 N.E.2d 24, 27 (1995), quoting People v. Medrano, 271 Ill. App. 3d 97, 100, 648 N.E.2d 218, 221 (1995). To prove prejudice, the defendant must show that \u201c \u2018 \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d \u2019 \u201d People v. King, 316 Ill. App. 3d 901, 913, 738 N.E.2d 556, 566 (2000), quoting People v. Haynes, 192 Ill. 2d 437, 473, 737 N.E.2d 169, 189 (2000), quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Specifically, the defendant must prove that \u201ca motion to suppress evidence would have had a reasonable probability (or likelihood) of success.\u201d Steels, 277 Ill. App. 3d at 128, 660 N.E.2d at 28. A reasonable probability is one that sufficiently undermines confidence in the outcome. King, 316 Ill. App. 3d at 913, 738 N.E.2d at 566. The defendant must satisfy both prongs to prevail on his claim of ineffective assistance of counsel. However, a reviewing court may analyze the facts of the case under either prong first, and if it deems that the standard for that prong is not satisfied, it need not consider the other prong. People v. Irvine, 379 Ill. App. 3d 116, 129-30, 882 N.E.2d 1124, 1136-37 (2008).\nIn Illinois, there are \u201cat least three tiers of police-citizen encounters: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions [or Terry stops], which must be supported by \u2018a reasonable, articulable suspicion of criminal activity\u2019; and (3) consensual encounters, which \u2018involve no coercion or detention and thus do not implicate fourth amendment interests.\u2019 \u201d People v. Jackson, 389 Ill. App. 3d 283, 287, 906 N.E.2d 56, 59-60 (2009), quoting People v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E.2d 187, 196 (2006).\n\u201cFor the purposes of [the] fourth amendment, an individual is \u2018seized\u2019 when an officer \u2018 \u201cby means of physical force or a show of authority, has in some way restrained the liberty of a citizen.\u201d \u2019 \u201d Luedemann, 222 Ill. 2d at 550, 857 N.E.2d at 199, quoting Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting Terry, 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16. Seizure occurs when a reasonable person would not feel free to decline a police officer\u2019s requests or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550, 857 N.E.2d at 200; Jackson, 389 Ill. App. 3d at 287, 906 N.E.2d at 60 (what separates a consensual encounter from an investigative detention is whether the police officer\u2019s conduct conveyed a means of physical force or a show of authority such that the defendant\u2019s freedom of movement was restrained).\nHere, Officer Vanourek testified that within seconds after he observed the defendant stop in the \u201cno parking\u201d zone, he maneuvered the police vehicle behind the defendant\u2019s car and turned on the flashing lights of the police vehicle to \u201cconduct a traffic stop.\u201d Once Officer Vanourek activated the flashing lights, he approached the defendant on the driver\u2019s side of the white car and asked the defendant for a driver\u2019s license and proof of car insurance. We find that the activation of the police vehicle\u2019s overhead lights was a show of authority by Officer Vanourek and Officer Bielema such that the defendant\u2019s freedom of movement was restrained. See Village of Mundelein v. Minx, 352 Ill. App. 3d 216, 220, 815 N.E.2d 965, 970 (2004) (police officer \u201casserted authority by activating his emergency lights\u201d because a reasonable person \u201cwould not have felt free to ignore the [police] officer and enter the house or walk away\u201d). Under the totality of the circumstances, no reasonable person, upon seeing the flashing lights of the police vehicle and the approach of police officers in uniform, would have felt free to decline Officer Vanourek\u2019s request to produce the necessary identification and proof of insurance or terminate the encounter by driving away. See generally Jackson, 389 Ill. App. 3d at 287, 906 N.E.2d at 60 (a factor that tends to support a finding of non-consensual seizure is \u201c \u2018 \u201cthe use of language or tone of voice indicating that compliance with the police officer\u2019s request might be compelled\u201d \u2019 \u201d), quoting People v. Cosby, 231 Ill. 2d 262, 274, 898 N.E.2d 603, 611 (2008), quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). Although a police officer \u201cmay approach and question a person seated in a parked vehicle without that encounter being labeled as a seizure,\u201d our review of the record did not reveal any such questioning. Luedemann, 222 Ill. 2d at 552, 857 N.E.2d at 201. Instead, Officer Vanourek\u2019s testimony unequivocally showed that upon approaching the defendant, he directed the defendant to produce his driver\u2019s license and proof of car insurance, without posing any questions regarding the welfare or actions of the defendant or his passenger \u2014 such as why the defendant pulled over or what he was doing there. But cf. Luedemann, 222 Ill. 2d at 534, 857 N.E.2d at 191 (police officer questioned the defendant about why he was there and asked for his identification). We reject the State\u2019s contention that the defendant was not \u201cseized\u201d because he had voluntarily stopped his car, rather than having stopped in response to the police vehicle\u2019s flashing lights. See Minx, 352 Ill. App. 3d at 220, 815 N.E.2d at 970 (rejecting the argument that no seizure occurred because the defendant had stopped and exited his car before noticing the police emergency lights; rather, the defendant had \u201csubmitted to them and did not leave\u201d). Under the facts of this case, Officer Vanourek\u2019s and Officer Bielema\u2019s November 19, 2007, encounter with the defendant was not consensual and amounted to seizure within the meaning of the fourth amendment.\nBased on our finding that the encounter between the defendant and Officer Vanourek was a seizure within the meaning of the fourth amendment, we must next determine whether such seizure was lawful. Under Terry, a temporary investigative detention may be conducted when a police officer has reasonable and articulable suspicion of criminal activity, short of probable cause to arrest, to justify the stop. Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. The police officer must point to \u201cspecific, articulable facts that, when combined with rational inferences derived from them, provide reasonable suspicion that the person seized has committed or is about to commit a crime.\u201d Minx, 352 Ill. App. 3d at 220, 815 N.E.2d at 970. Although the facts \u201csupporting the [police] officer\u2019s suspicion do not need to constitute probable cause,\u201d the police officer\u2019s actions must be based on more than \u201ca mere hunch.\u201d Minx, 352 Ill. App. 3d at 220, 815 N.E.2d at 970.\nIn the case at bar, Officer Vanourek testified that on November 19, 2007, he observed the defendant driving a white car about 100 feet directly in front of the police vehicle driven by Officer Vanourek. A female passenger was in the passenger seat of the white car at all times. Once the white car stopped in a \u201cno parking\u201d zone, Officer Vanourek stopped the police vehicle behind the white car, activated the patrol car\u2019s flashing lights and approached the defendant, who had remained seated in the driver\u2019s seat of the car. Based on Officer Vanourek\u2019s own testimony, he lacked any suspicion of criminal activity, let alone one that could be characterized as reasonable or articulable, to justify conducting a Terry stop of the defendant. Here, Officer Vanourek failed to see any traffic law violations being committed by the defendant during the 20 to 25 seconds that he observed the white car traveling on the street. Moreover, as the defendant correctly pointed out, he did not commit a parking infraction by stopping in the \u201cno parking\u201d zone because neither he nor Aikens left the white car unoccupied. See Chicago Municipal Code \u00a79 \u2014 4\u2014010 (2009) (\u201c \u2018[p]arking (to park)\u2019 means the standing of an unoccupied vehicle otherwise than temporarily for the purpose of and while actually engaged in loading or unloading property or passengers\u201d (emphasis added)); see generally Chicago Municipal Code \u00a79 \u2014 100\u2014010 (2007) (\u201c[t]he purpose of this chapter is to provide for the administrative adjudication of violations of ordinances defining compliance *** and regulating vehicular standing or parking within the city [of Chicago]\u201d). Officer Vanourek\u2019s testimony showed that the white car was occupied by the defendant and Aikens at all times. At no point did Officer Vanourek state at trial that the \u201cno parking\u201d zone was also a \u201cno standing\u201d or \u201cno stopping\u201d area, where the defendant would have been prohibited from stopping the white car. See Chicago Municipal Code \u00a79 \u2014 4\u2014010 (2009) (\u201c \u2018[standing (to stand)\u2019 means the halting of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in receiving or discharging passengers\u201d). Thus, Officer Vanourek lacked grounds to conduct a Terry stop of the defendant\u2019s vehicle and we need not examine the defendant\u2019s alternative arguments relating to the issue of the unlawful seizure.\nThe State argues that even if a fourth amendment violation had occurred, the exclusionary rule did not apply to bar evidence of the defendant\u2019s revoked license because no police misconduct occurred, and it cites People v. McDonough for support. People v. McDonough, 395 Ill. App. 3d 194, 917 N.E.2d 590 (2009).\nIn McDonough, the defendant was the driver of a car that was stopped on the narrow shoulder of a busy highway. McDonough, 395 Ill. App. 3d at 195, 917 N.E.2d at 590. A State Police trooper (state trooper) noticed the stopped car and \u201cdecided to inquire whether the [occupants] needed assistance.\u201d McDonough, 395 Ill. App. 3d at 195, 917 N.E.2d at 591. The state trooper then parked behind the defendant\u2019s car and turned on his emergency lights for \u201csafety reasons\u201d because \u201cit was dark outside\u201d and \u201c \u2018a lot of traffic\u2019 \u201d was present. McDonough, 395 Ill. App. 3d at 195, 917 N.E.2d at 591. After the state trooper exited his vehicle, he approached the defendant and asked if \u201c \u2018everything was okay.\u2019 \u201d McDonough, 395 Ill. App. 3d at 196, 917 N.E.2d at 591. When the defendant opened his car window slightly, the state trooper detected the odor of alcohol on the defendant\u2019s breath. McDonough, 395 Ill. App. 3d at 196, 917 N.E.2d at 591. Consequently, the defendant submitted to field-sobriety tests and the state trooper arrested the defendant for DUI. McDonough, 395 Ill. App. 3d at 196, 917 N.E.2d at 591. The trial court later granted the defendant\u2019s motion to suppress evidence, on the ground that the state trooper had improperly seized the defendant. McDonough, 395 Ill. App. 3d at 196, 917 N.E.2d at 592. The trial court also entered a written order rescinding the defendant\u2019s statutory summary suspension of his driver\u2019s license. McDonough, 395 Ill. App. 3d at 197, 917 N.E.2d at 592. The appellate court disagreed and found that \u201cthe [state] trooper\u2019s activating his emergency lights as he pulled behind a stopped vehicle on a busy four-lane highway\u201d did not constitute police misconduct and, as a safety matter, was the \u201centirely prudent and [right] thing to do.\u201d McDonough, 395 Ill. App. 3d at 199-200, 917 N.E.2d at 594. The appellate court also noted that a law enforcement officer\u2019s action is not necessarily unlawful and the exclusionary rule need not inevitably apply when he \u201capproaches an already stopped vehicle and activates his overhead emergency lights in the absence of reasonable suspicion that criminal activity has or will occur.\u201d McDonough, 395 Ill. App. 3d at 200, 917 N.E.2d at 595. Instead, \u201cother circumstances,\u201d such as safety precautions, may justify the use of the emergency lights. McDonough, 395 Ill. App. 3d at 200, 917 N.E.2d at 594-95 (noting FBI statistics that stopping on or near a highway is one of the most dangerous aspects of police work). The appellate court then reversed the trial court\u2019s order granting the defendant\u2019s motion to suppress evidence, vacated the trial court\u2019s order rescinding the defendant\u2019s statutory summary suspension of his driver\u2019s license, and remanded the case for further proceedings. McDonough, 395 Ill. App. 3d at 201, 917 N.E.2d at 596.\nWe find the facts of McDonough distinguishable from the facts of the instant case. Unlike the defendant in McDonough, the defendant in the case at bar did not stop on the side of a busy highway, but instead, pulled over to a \u201cno parking\u201d zone of a residential street. Officer Vanourek neither witnessed any traffic violations before the white car stopped nor had any reasonable suspicion that criminal activity occurred or was about to occur after the car stopped. As a Chicago police officer, Officer Vanourek must be presumed to know the traffic and parking laws he was charged with enforcing, and the evidence revealed that the defendant violated no laws. Unlike McDonough, Officer Vanourek did not approach the white car with the intention of asking its occupants whether they needed assistance or if \u201ceverything was okay,\u201d in the context of fulfilling community caretaking functions under the duties of a police officer. Instead, based on Officer Vanourek\u2019s own testimony, he turned on the flashing lights of the police vehicle \u201cto conduct a traffic stop\u201d within 5 to 10 seconds after the defendant stopped the white car. Officer Vanourek\u2019s unlawful seizure of the defendant, knowing that the defendant had not committed any traffic or parking violations, amounted to police misconduct. Thus, we find that the exclusionary rule would have applied to bar evidence of the defendant\u2019s revoked license, obtained as a result of an unlawful seizure, had defense counsel properly filed a motion to suppress evidence.\nApplying our findings to the issue of ineffective assistance of counsel, we conclude that the presumption that defense counsel opted not to file a motion to suppress evidence as a matter of trial strategy is overcome. The evidence in the record on appeal has not provided any sound reason as to why defense counsel would have chosen to forego a motion to suppress evidence and to solely pursue a defense based on the theory of necessity. Thus, we find that the performance prong under Strickland has been satisfied and the defendant has shown that defense counsel\u2019s performance fell below an objective standard of reasonableness.\nWe also conclude that had defense counsel appropriately filed a motion to suppress evidence of the defendant\u2019s revoked license, the motion to suppress evidence would have had a reasonable, if not high, probability of success. As discussed above, the evidence is clear that Officer Vanourek had no reasonable suspicion upon which to base the seizure of the defendant, in light of the fact that the defendant committed no traffic or parking violations. Thus, a successful motion to suppress evidence would have changed the outcome of this case because it would have prevented the State from continuing its prosecution against the defendant for felony driving on a revoked license. 625 ILCS 5/6 \u2014 303(a) (West 2006). Therefore, we find that the defendant was prejudiced by defense counsel\u2019s failure to file a motion to suppress evidence and the prejudice prong of the Strickland test has been satisfied.\nBecause a motion to suppress evidence would probably have been successful and the State could not have prevailed without the evidence of the defendant\u2019s revoked license, we reverse the defendant\u2019s conviction and vacate his sentence. See generally People v. Merriweather, 261 Ill. App. 3d 1050, 1056, 634 N.E.2d 361, 366 (1994). Accordingly, we need not reach the issue of whether questions posed by the trial court to the State\u2019s witness improperly biased the defendant.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Cook County and vacate the defendant\u2019s sentence.\nReversed; sentence vacated.\nTHEIS and KARNEZIS, JJ., concur.\nThe defendant was convicted on count II of the four counts of charges against him. The trial court noted that counts I, III and IV \u201cmerged.\u201d", "type": "majority", "author": "PRESIDING JUSTICE CUNNINGHAM" } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, and Michael H. Orenstein, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Anthony M. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE MARSHALL, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201408\u20141242\nOpinion filed March 23, 2010.\nMichael J. Pelletier, Patricia Unsinn, and Michael H. Orenstein, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Anthony M. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0626-01", "first_page_order": 642, "last_page_order": 652 }