SECOND DI VI SI ON MARCH 23, 2010

1-08-1242 THE PEOPL E OFTHE STATE OF I L L I NOI S, ) Appea l from the

) Circuit Court of Plaintiff-Appellee , ) Cook County

. ) v. ) No. 07 CR 24594 ) WI L L I E MARSHAL L , ) Honora ble ) Michae l P. Toomi n, Def endant- Appellant. ) J udg e Presiding

. PRES I DING JUS TI CE CUNNI NGHAM de livered the opinion of the court: Following a bench trial in the circ uit court of Cook County , the defe ndant, Wil lie Marsha ll,

was convicted of one count of felony driving on a revoke d license (625 I L CS 5/6 -3 0 3 (a ) (West 2 0 0 6 )) and sentenc ed to two y ear s of imprisonment. On appea l, the defe ndant arg ues t h at : (1 ) d ef en s e co u nsel was ineffec tive for failing to file a motion to suppress evidence; and (2) a line o f questioning posed by the trial cou rt t o the State’s sole witness was improperly biased ag ainst the defe ndant. For the following rea sons, we reve rse the judgme nt of the circ uit court of Cook County and vac ate the de fenda nt’s sentenc e. BA CKGROUND On November 19, 2 0 0 7 , t he defe ndant was arr ested and later char g ed with four counts of felony driving while his driver’ s license was revoke d. On March 6 , 2008, a bench trial was held during which two witnesses te stified to the events lea ding up to the de fenda nt’s arr est. The State prese nted the testimonyof one witness, Chicag o police office r J oseph Vanour ek1-08-1242

(Off icer Vanour ek). Offic er Vanour ek testified that on November 19, 2007, at approximately 6:20 p.m., he and his partner, O ffice r B ielema, were trave ling westbound in a poli ce vehicle near 1610 West Fa rg o Avenue in Chicag o, I llinois

. Offic er Vanour ek observe d the defe ndant driving a white Cadillac (white car ) about 100 fee t awa y , direc tly in front of Offic er Vanour ek’s police vehicle. A fema le passeng er was seate d in the passeng er seat of the white car . Offic er Vanour ek testified that the white car was initially in a “re g ular lane of traff ic,” but then it pulled over to the rig ht curb lane and “par ked in a ‘[no parking ]’ zone along the curb,” wher e a “No Parking ” sign was posted. Ba sed

on this observa tion, Offic er Vanour ek maneuve red the police vehicle to the rig ht curb, “pulled [up] behind the [white car ]” and turned on the f lashing lights of the police vehicle to “ conduct a traff ic stop.” Offic er Vanour ek then exit ed t h e p o lice vehicle and approa ched the defe ndant, who was

s i t t i n g i n t h e driver’ s seat of the white car . When Offic er Vanour ek asked the defe ndant for a driver’ s license and proof of car insurance , the defe ndant was only able to produce a state i d en t i fi cation car d. A name chec k of the state identification car d reve aled that the defe ndant’s driving privileg es wer e revoke d for driving under the influence (DUI ). At that point, Offic er Vanour ek ar

rested the defe ndant and the w hite car was then towe d. L ater at a police station, the defe ndant informed the police office rs that h e k n ew t h at his driver’ s license ha d been revoke d. Offic er Vanour ek issued four traff ic citations to the defe ndant, including one for pa

rking in a “no pa

rking ” zone and one for f ailing to c arr

y car insurance

. On cross-e x ami n ati on, Offic er Vanour ek stated that approximately 20 to 25 seconds had

occur red betwee n the time he first observe d the white car to the time that the defe ndant pulled over to the “no parking ” z one. During this short period of t ime, Offic er Vanoure k did not observe any 21-08-1242

t ra ff i c l aw violations being committed by the defe ndant. Wit hin seconds afte r the white car had stopped in the “no parking ” zone, Offic er Vanour ek’s police vehicle pulled up behind the white car . Offic er V anoure k noted that both he and O ffice r B ielema a pproac hed the de fenda nt’s white ca r. Kar en Aikens testified on behalf of the defe ndant, in support of a defe nse theory of nece ssity

. She stated t hat s he had known t he defenda nt for 14 y ear s. Aikens t estified tha t o n No v em b er 19, 2007, at approximately 6:20 p.m., she was driving the whi t e ca r, wi th the defe ndant riding as a passeng er, w hen she suf

fer ed an onset of acid ref

lux

. At that point, Aike ns pulled over to the side of the road. Aikens stated that during an acid ref lux episode, she would be “[unable] to function or do any thing until it passes,” and that it would not be safe for her to opera te a vehicle. When Aikens stopped the white car , the defe ndant “switche d seats” with Aikens beca use the defe ndant had wanted to take her to a hospital. Howeve r, at no point did the defe ndant opera t e t h e white car . Shortly there afte r, a police vehicle a rrived be cause the white ca r wa s in a “no parking ” zone. Aikens then informed the police office rs of her illness. On cr oss-examination, Aikens stated that afte r the defe ndant was arr ested and the white car towed, she walked to near by public transporta tion and went home. At this point during the benc h trial, the trial court asked Aike ns the following questions:

“THE COU RT: But y ou wer en’t in the drive r’s seat? [AI KENS]: No, because we switche d over. THE COURT: When? [AI KENS]: When I pulled in the parking space . [The defe ndant] was like, I want to take y ou to the hospital, whateve r, just 31-08-1242

he jumped out over, and I slid over, and I start bending down beca use the pain is so hard. I just started sitti ng in the chair like this. And that’s when [the police] came and opene d the door.” I n re b u t tal, the State rec alled Offic er Vanour ek to the witnesses stand. Offic er Vanour ek testified t hat he did not o b s er v e t h e wom an in the whit e car switch seats with the defendant. The trial court then e ng ag ed in the following exchang e with Off icer Vanour ek: “THE COURT: You followed the [whit e] car 100 or 200 fee t? [OFFI CER VANOUREK]: Yes, sir. THE COURT: You could see who was dr iving the c ar? [OFFI CER VANOUREK]: Yes, sir. THE COURT: No doubt in y our mind? [OFFI CER VANOU REK]: There is no d oubt. There was a pretty g ood siz e disparity betwee n the man and the woman, and it was clea rly him. THE COURT: You pulled up to the [whit e] car and when y ou g ot to the [whit e] c ar – how soon did y ou g et to the [whit e] c ar afte r it pulled into t he [n] o [p] arking space ? [OFFI CER VANOUREK]: W ithin five to ten seconds. THE COURT: You we nt rig ht to the driver’ s side? [OFFI CER VANOUREK]: Yes, sir.” On cross-e x amination during the State’s rebuttal, Offic er Vanour ek noted t h at h e could 41-08-1242

“re cog nize the broad shoulders of a man versus that of a fema le.” Office r Va nourek testified that he observe d the white car during “dusk” and that streetlig hts illumi nated the are a. At no time prior to approa ching the white car in the “no parking ” zone did Offic er Vanour ek have the bene fi t of a “prof ile view” or a “hea d-on view” of the white car . I nstead, Offic er Vanour ek’s sole vantag e point of the white c ar, w hile it was being driven on the r oad, wa s from behind the w hite car

. The trial c ourt then aske d Offic er V anoure k the following questions:

“THE CO UR T: You asked the defe ndant for his driver’ s license a nd proof of

insurance ? [OFFI CER VANOUREK]: Yes, sir. THE COURT: And he told y ou what? [O F F I CE R V A N O U RE K ]: H e d id n ’ t say any thing at the time. He just

– h e produce d a state I D. But he said he didn’t have insurance and he did not pre sent proof of insurance

. THE COURT: Did he e ver te ll y ou he wa sn’t driving ? [OFFI CER VANOU REK]: I don’t rec all that if he said to me, ‘I wasn’t driving.’ I

mean, I saw him driving

. THE COURT: Well, did he or didn’t he? [OFFI CER VANOUREK]: I don’t rec all him say ing tha t. THE COURT: Th er e was no conver sation as to whether he was driving the ca

r or she was driving the ca r? [ OF FI CER VANOU REK]: No. There was no conver sation 51-08-1242

about that.”

After the parties’ closing arg uments, the trial court found the defe ndant g uilty of one count of fe lony driving on a re voked license

. 625 I L CS 5/ 6-303(a ) (West 2006). 1 On April 11, 2008, the defe ndant filed a motion for a new trial. On April 21, 2008, the trial court denied the motion for a new trial and sentenc ed the defe ndant to two y ear s of imprisonment. The trial court also denied the defe ndant’s motion to rec onsider sentenc e, which arg ued that the defe ndant’s two-y ear sentenc e was excessive in view of the defe ndant’s backg round and the nature of the off ense. O n May

2, 2008, the def

endant f iled a notice of

appea l before this court. ANAL YSI S We deter mine the following issues: ( 1) whether defe nse counsel was ineffe ctive for failing to file a motion to suppress evidenc e; and (2) whether questions posed by the trial court to the State’s witness improperly

biased the de fenda nt. We first deter mine whether defe nse counsel was ineffect i v e for failing to file a motion to suppress evide nce. The defe ndant arg ues that defe nse counsel provided ineffe ctiv e a s s is ta n c e of counsel beca

use he failed to file a motion to suppress evidenc e of the d efendant’s revoke d license, which was obtained as a result of an unlaw fu l s eiz ure under the fourth amendment. U.S. Const., amend. I V; I ll. Const. 1970, art. I , §6. Specifica lly , the defe ndant contends that Off icer Vanour ek lacke d statutory or constitutional g rounds to conduct a Terry stop. Terry v. Ohio, 392 U.S. 1, 20 L

. Ed. 2d

The de fenda nt was convic ted on count I I of the four

counts of cha

rg es ag ainst him. The 1 trial court noted tha t counts I , I I I and I V “mer g ed.”

61-08-1242

889, 88 S. Ct. 1868 (1968). Thus, the defe ndant arg ues, defe nse counsel did not use sound trial strateg y beca use cha lleng ing the unlawful stop was the defe ndant’s best de fense

. On the other hand, the State arg ues that Offic er Vanour ek’s encounte r with the d e fenda nt was

consensua l in nature and did not amount to a seizure under the fourth amendment. I nstead, the State arg ues that the defe ndant had voluntarily stopped the white car prior to O ffice r Vanour ek’s arr ival behind the white car , and, other than activating the police vehicle’ s overhe ad lights, Offic er Vanour ek di d nothing that would have made a rea sonable person fee l as though his fre edom was restra ined. There fore , the State arg ues, the encounte r did not trig g er fourth amendment protec tions and a motion to suppress evidenc e would have had no chanc e of succe ss and thus, defe nse counsel was not ineff

ective. To succe ssfully establish a claim of ineffe ctive assistance of counsel, the defe ndant: (1) must prove that the attorney ’s perf ormanc e fell below an objec t i ve standard of rea sonablene ss so as to deprive him of the rig ht to counsel under the six th amendment (performanc e prong ); and (2) that this substandard perf

ormanc e resulted in prejudice (p re j u dice 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 perf ormanc e prong , the defe ndant must overc ome a “ ‘strong presumption that [defense] counsel’s complained- of ac tion was mere ly trial strateg y .’ ” People v. Steels, 277 I ll. App. 3d 123, 127, 660 N.E. 2 d 24, 27 (1995), quoting P eople v. Medra no, 271 I ll. App. 3d 97, 100, 648 N.E.2d 218, 221 (1995). To prove prejudice , the defe ndant must show that “ ‘there is a rea sonable probability that, but for counse l’s unprofe ssional error s, the result of the pr ocee ding would have been dif fer ent.’ ” People v. King , 316 I ll. App. 3d 901, 913, 738 N.E.2d 556, 566 (2000), quoting People v. Hay nes, 71-08-1242

192 I ll. 2d 437, 473, 737 N.E.2d 169, 189 (2000), quoting Strickland, 466 U.S. at 694, 80 L

. Ed. at 698, 104 S. Ct. at 2068. Specifica lly , the defe ndant must prove that “a motion to suppress evidenc e would have had a rea sonable probability (or likelihood) of succe ss.” Steels, 277 I ll. App. 3d at 128, 660 N.E.2d at 28. A rea sonable probability is one that sufficie ntly undermines confide nce in the outcome. King , 316 I ll. App. 3d at 913, 738 N.E.2d at 566. The defe ndant must satisfy both prong s to prevail on his claim of ineffe ctive assistance of counsel. Howeve r, a revie wing court may analy ze the fa cts of the c ase unde r either prong first, and, if it dee ms that the standard f or that prong is not satisfied, it need not c onsider the other prong . People v. I rvine, 379 I ll. App. 3d 116, 129-30, 882 N.E.2d 1124, 1136-37 ( 2008). I n I llinois , there are “at least three tiers of police-c itiz en encounte rs: (1) arr ests, which must be supported by probable cause ; (2) brief investi g ative detentions [or Terry stops] , which must be supp o r te d b y ‘ a r e a s o n a

b le , a r ti c u lable suspicion of criminal activity ’; and (3) consensua l encounte rs, which ‘involve no coer cion or detention and thu s d o not implicate fourth amendment interests.’ ” People v . J ac k son, 389 I ll. App. 3d 283, 287, 906 N.E.2d 56, 59-60 (2009), quoting People v. Luedema nn, 222 I ll. 2d 530, 544, 857 N.E.2d 187, 196 (2006). “F or the purposes of [t he] fourth amendment, an individual is ‘seized’ when an office r ‘ “by means of phy sical forc e or a show of authority , has in some way res t ra i n ed t h e liberty of a citizen.’ ” ” Luedema nn, 222 I ll. 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 occur s wh en a reasonable person would not fee l fre e to decline a police office r’s reque sts or otherwise terminate the encounte r. Luedema nn, 81-08-1242

222 I ll. 2d at 5 5 0 , 8 5 7 N.E.2d at 200; J ackson, 389 I ll. App. 3d at 287, 906 N.E.2d at 60 (wha t separ ates a consensua l encounte r from an in v est igative detention is whether the police office r’s conduct convey ed a means of phy sical forc e or a show of authority such that the defe ndant’s fre edom of movement wa s restrained). Her e, Offic er Vanour ek testified that within seconds afte r he observe d the defe ndant stop in the “no parking ” zone, he maneuve red the police vehicle behind the defe ndant’s car and turned on the flashing lights of the police vehicle to “conduc t a traff ic stop.” Once Offic er Vanour ek activate d the flashing lights, he approa ched the defe ndant on the driver’ s side of the white car and asked the defe ndant for a driver’ s license and proof of car insurance

. We find that the activation of the police vehicle’ s overhe ad lights was a show of authority by Offic er Vanour ek and Offic er Bie lema such that the defe ndant’s fre edom of movement was re strained. See Villag e of Munde lein v. Minx , 352 I ll. App. 3d 216, 220, 815 N.E.2d 965, 970 (2004) (police office r “asse rted authority by activating his

emer g ency lights” beca

use a rea sonable person “w o u l d n o t have felt fre e to ignor e the [pol ice] office r and enter the house or walk awa y ”). Under the totality of the circ umstances, no rea sonable person, upon seeing the flashing lights of the police vehicle and the approach of police officer s in uniform, would have fe l t fr ee to decline Offic er Vanour ek’s reque st to produce the nece ssary identification and proof of ins u ra n ce or terminate the encounte r by driving awa y . See g ener ally J ackson, 389 I ll. Ap p . 3 d at 287, 906 N.E.2d at 60 (a fac tor that tends to support a finding of

nonconsensua l seizure is “ ‘ “the use of lang uag e or tone of voice indicating that compliance with the police office r’s reque st might be compelled” ’ ”), quoting People v. Cosby , 231 I ll. 2d 262, 274, 898 N.E.2d 603, 611 (2008), quoting United States v. Mendenha ll, 446 U.S. 544, 554, 64 L

. Ed. 2d 91-08-1242

497, 509, 100 S. C t

. 1870, 1877 (1980). Although a pol ice officer “may approa ch and question a person seate d in a parke d vehicle without that encounte r being labeled as a seizure,” our revie w of the rec ord did not reve al any such questioning. Luedema nn, 222 I ll. 2d at 552, 857 N.E.2d at 201. I nstead, Offic er Vanour ek’s testimony unequivoca lly showed that upon approa ching the defe ndant, he direc ted the defe ndant to produce his driver’ s license and proof of car insurance , without posing any questions reg arding the we l fa re o r actions of the defe ndant or his passeng er–suc h as why the defe ndant pulled over or what he was doing there

. But cf. Luedema nn, 222 I ll. 2d at 534, 857 N.E.2d at 191 (police office r quest i o n ed t h e defe ndant about why he was there and asked for his identification). We reje ct the State’s contention that the defe ndant was not “seized” beca use he had voluntarily

stopped his car , rathe r than ha ving stoppe d in response to the police vehicle’ s flashing lights. See Minx , 352 I ll. App. 3d at 220, 815 N.E.2d at 970 (re jecting the arg ument that no seizure

occur red beca use the defe ndant had stopped and exit ed his car befor e noticing the police emer g ency lights; rathe r, the defe ndant had “submitted to them and did not leave ”). Under the fac ts of this case , Offic er Vanour ek’s and Offic er Bie lema’s November 19, 2007 encounte r with the defe ndant was not

consensua l and amounted to seizure within the mea ning of the fourth amendment. Ba sed on ou r fi n d ing that the encounter between the defe ndant and Offic er Vanoure k was

a seizure within the meaning of the fourth amendment, we must next deter mine whether such seizure

was lawful. Under Terry , a tem porary investiga tive detention may be conducte d when a police office r has rea sonable and articula ble suspicion of criminal activity , short of probable cause to arr est, to justify the stop. Terry , 392 U.S. at 21, 20 L

. Ed. 2d at 906, 88 S. Ct. at 1880. The police office r must point to “spec ific, articula ble fac ts that, when combined with rational infere nces derive d from

101-08-1242

them, provide rea s o n ab l e s u spicion that the person seized has committed or is about to commit a crime.” Minx , 352 I ll. App. 3d at 220, 815 N.E.2d at 970. Although the fac ts “supporting the [po lice] office r’s suspicion do not need to constitute probable cause ,” the police office r’s actions must be based on more than “a mere hunch.” Minx, 352 I ll. App. 3d at 220, 815 N.E.2d at 970. I n t h e case at bar, Offic er Vanoure k testified t hat on November 19, 2007, he observ ed t h e defe ndant driving a white car about 100 fee t direc tly in front of the police vehicle driven by Offic er Vanour ek. A fema le passeng er was in the passeng er seat of the white car at all times. Once the white car stopped in a “ no parking ” zone, Off icer Vanour ek stopped the police vehicle behind the white car , activate d the patrol car ’s flashing lights and approa ched the defe ndant, who had rema ined seate d in the driver’s s eat of the car. Ba sed on Offic er Vanoure k’s o wn t es t i m o n y , he lacked any suspicion of criminal activity , let alone one that could be char acte rized as rea sonable or articula ble, to justify conducting a Terry stop of the defe ndant. Her e, Offic er Vanour ek failed to see any traff ic law violations being committed by the def endant dur ing the 20 to 25 seconds that he observe d the wh i t e car trave ling on the street. Moreove r, as the defe ndant corr ectly pointed out, he di d n o t commit a parking infrac tion by stopping in the “no parking ” zone beca use neither he nor Aikens left t h e wh ite car unoccupie d. See Chicag o Municipal Code §9-4-010 (2009) (“ ‘[p] arking (to park) ’

means the standing of an unoccupie d vehicle otherwise than temporar ily for the purpose of and while actua lly eng ag ed in loading or unloading property or passeng ers” (empha sis added) ); see g ener ally Chicag o Municipal Code §9-100-010 (2007) (“[t] he pu rpose of this chapte r is to provide for the admin i strative adjudication of violations of ordinanc es defining compliance *** and reg ulating vehicular standing or parking within the city [of Chicag o]”). Offic er Vanour ek’s testimony showed 111-08-1242

that the whit e car was occupie d by the defendant and Aikens at all times. At no point did Offic er Vanour ek state at trial that the “no parking ” z one was also a “no standing ” or “no st opping” are a, wh er e the defe ndant would have been prohibited from stopping the white car . Se e C h i ca go Municipal Code §9-4-010 (2009) (“ ‘[s] tanding (to stand)’ means the halting of a vehicle, whether

o cc u p i ed o r not, otherwise than temporar ily for the purpose of and while actua lly eng ag ed i n

rec eiving or discharg e passeng ers” ). Thus, Offic er Vanour ek lacke d g rounds to conduct a Terry stop of the defe ndant’s vehicle and we need not examine the defe ndant’s alterna tive arg uments rela ting to the issue of the unlaw ful seizure. The State a

rg ues that eve n if a fourth amendment viol ation had occurre d, the ex clusionary rule did not apply to bar evidenc e of the defe ndant’s revoke d license beca use no police misconduct

occur red, and cites People v. McDonoug h for support. People v. McDonoug h, 395 I ll. App. 3d 194, 917 N.E.2d 590 (2009)

. I n McDonoug h, the defe ndant was the driver of a car that was stopped on the narr ow shoulder of a busy highw ay . McDonoug h, 395 I ll. App. 3d at 195, 917 N.E.2d at 590. A State Police trooper (state trooper) noticed the stopped car and “deci d ed t o inquire whether the [occupants] neede d assistance .” McDonoug h, 395 I ll. App. 3d at 195, 917 N.E.2d at 591. The state trooper then parke d behind the defe ndant’s car and turned on his emer g ency lights for “saf ety rea sons” beca

use “it was dark outside” and “ ‘a lot of traff ic’ ” was prese nt. McDonoug h, 395 I ll. App. 3d at 195, 917 N.E.2d at 591. After the stat e trooper exit ed his vehicle, he approa ched the defe ndant and asked if “ ‘e v erything was okay .’ ” McDonoug h, 395 I ll. App. 3d at 196, 917 N.E.2d at 591. Whe n t h e defe ndant opened his car window slightly , the state trooper detec ted the odor of al co h o l o n t he 121-08-1242

defe ndant’s brea th. McDonoug h, 3 9 5 I ll. App. 3d at 196, 917 N.E.2d at 591. Consequently , the defe n d an t submitt ed to field-sobrie ty tests and the state trooper arr ested the defe ndant for DUI

. McDonoug h, 395 I ll. App. 3d at 196, 917 N.E.2d at 591. The trial court later g rante d the defe ndant’s motion to suppress evidenc e, on the g round that the state trooper h ad i m proper ly seized the defe ndant. McDonoug h, 395 I ll. App. 3d at 196, 917 N.E.2d at 592. The trial court also enter ed a written order resc inding the defe ndant’s statutory summa ry s u spension of his driver’ s license. McDonoug h, 395 I ll. App. 3d at 197, 917 N.E.2d at 592. The appellate court disag ree d and found that “the [st ate] trooper’ s activating his e merg ency lights as he pulled behind a stopped vehicle on

a bu s y four- lane highw ay ” did not constitute police misconduct and, as a safe ty matter, was the “entire ly prudent and [right] thing to do.” McDonoug h, 395 I ll. App. 3d at 199-200, 917 N.E.2d at 594. The appellate court also noted that a law enfor ceme nt office r’s action is not nece ssarily

u n l awf ul and the exclusionary rule need not inevitably apply when he “appr oache s an alr ea d y stopped vehicle and activate s his overhe ad emer g ency lights in the absenc e of rea sonable suspicion that criminal activity has or will occur .” McDonoug h, 395 I ll. App. 3d at 200, 917 N.E.2d at 595. I nstead, “other circ umstances,” such as safe ty prec autions, may justify the use of the emer g ency lights. McDonoug h, 395 I ll. App. 3d at 200, 917 N.E.2d at 594-95 (noting FB I statistics that stopping on or near a highw ay is one of the most dang erous aspec ts of police work). The appellate court then reve rse d t h e t ri al court’s order g ranting the defe ndant’s motion to suppress evidenc e,

vacated the trial court’s order resc inding the defendant’s statutory summary suspension of his driver’ s license, and rema nded the case for further proce eding s. McDonoug h, 395 I ll. App. 3d at 201, 917 N.E.2d at 596. 131-08-1242

We find the fac ts of McDonoug h distinguishable from the fac ts of the instant case . Unlike the defe ndant in McDonoug h, the defe ndant in the case at bar d i d not stop on the side of a busy highw ay , but instead, pulled over to a “no parking ” z one of a re sidential street. Of fice r Va nourek neither witnes s ed any traff ic violations befor e the white car stopped, nor had any rea sonable suspicion that criminal activity occur red or was about to occur afte r the car stopped. As a Chicag o police office r, Officer Va n o u re k m ust be presumed to know the traff ic and parking laws he was char g ed with enfor cing , and the evidence reve aled that the defe ndant violated no laws. Unlike McDonough , Of

fice r Vanour ek did not approa ch the white car with the intention of asking its occupa nts whether they neede d assistance or i f “everything was okay ,” in the contex t of f u l fi l l ing community car etaking functions under the duties of a p o l i ce office r. I nstead, based on Offic er Vanour ek’s own testimony , he turned on the flashing lights of the police vehicle “to conduct a traff ic stop” within 5 to 10 seconds afte r the defe ndant stopped the white car . Offic er Vanour ek’s unlawful

s ei z ure of the defe ndant, knowing that the defe ndant had not committed any traff ic or parking violations, amounted to police misconduct. T h u s , we fi nd that the exclusionary rule would have applied to bar evidenc e of the defe ndant’s revoke d license, obtained as a result of an unl aw ful seizure, had de fense counsel prope rly filed a motion to suppress evide nce. Apply ing our finding s to the issue of ineffe ctive assistance of counsel, we conclude that the presumption that defe nse counsel opted not to file a motion to suppress evidenc e as a matter of trial strateg y is overc ome. The evidence in the record on appea l has notprovided any sound rea son as to why d ef

en s e co u nsel would have chosen to fore g o a mot ion to suppress evidence and t o solely pursue a defe nse based on the theory of nece ssity

. Thus, we find that the perf ormanc e prong under 141-08-1242

Strickland has been sa tisfied and the defe ndant has shown that defe nse counsel’s perf ormanc e fell below an obje ctive standa rd of r easona

bleness. We also conclude that had defe nse counsel appropr iately filed a motion to suppress evidenc e of the defe ndant’s re voked license , the motion to suppress evidence would have ha d a re asonable , if not high, probability of succe ss. As discussed above, the evidenc e is clea r that Offic er Vanour ek had no rea sonable suspicion upon which to base the seizure of the defe ndant, in light of the fac t that the defe ndant committed no traff ic or parking violations. Thus, a succe ssful motion to suppress evidenc e would have chang ed the outcome of this case beca use i t would have prevente d the S tate from continuing its prosec ution ag ainst the defe ndant for felony driving on a revoke d license. 625 I L CS 5/6-303(a) (West 2006). Therefo re , we fi n d that the defe ndant was prejudice d by defe nse counsel’s failure to file a motion to suppress evidenc e and the prejudice prong of the Strickland test has bee n satisfied. Be cause a motion to suppress evidenc e would probably have been succe ssful and the State

co u l d n o t have preva iled without the evidenc e of the defe ndant’s revoke d license, we reve rse t h e defe ndant’s conviction and vacate his sentenc e. See g ener ally People v. Merr iweathe r, 261 I ll. App. 3d 1050, 1056, 634 N.E.2d 361, 366 (1994). Acc ording ly , we need not r eac h the issue of whether questions posed by

the trial cour

t to the State’s witness improperly biased the de fenda nt. For the fore g oing rea sons, we reve rse the judgme nt of the circ uit court of Cook County and

vacate the def

endant’ s sentence

. Reverse d; sentence vacated. THEI S and KARNEZ I S, J J ., concur . 151-08-1242

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