United States of America v. Rodolpho Hernandez Flores

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1515
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
R ODOLPHO HERNANDEZ FLORES,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 14‐CR‐30068‐MJR — Michael J. Reagan, Chief Judge.
____________________
A RGUED AUGUST 5, 2015 — D ECIDED A UGUST 19, 2015
____________________
Before WOOD, Chief Judge, and BAUER and MANION, Circuit
Judges.
P ER C URIAM. Rodolpho Hernandez Flores was pulled
over on an Illinois highway for driving with an obstructed
license plate—his rear plate was affixed to his car by a
standard frame that covered the plate’s periphery. After
Hernandez Flores consented to a search of his vehicle, police
officers discovered over five kilograms of heroin, and Her‐
nandez Flores confessed to transporting it. He later moved

-- 1 of 9 --

2
to sup
office
cause
ficer
Flore
cate t
ings c
Th
State
drivin
“well
and
whee
ate th
chang
brake
“notic
ficer a
state
ppress the
er did not h
e his plate w
could not
s’s common
the district
consistent w
he facts ar
Police Troo
ng down a
l under” the
rigid” way
el very tigh
heir vehicle
ged lanes
es. The offic
ced the rea
asserted th
it originate
heroin and
have reason
was not ob
have reas
nplace plat
court’s jud
with this op
Ba
e not in d
oper, Nate
a highway
e 65 mile p
y “with bo
tly and not
.” As he pa
for “no ap
cer pulled o
ar license pl
at the fram
ed from.” Th
d the confe
nable groun
structed. B
sonably bel
te frame vio
dgment an
pinion.
ackground
dispute. In
McVicker,
y. Hernand
er hour spe
oth hands
t relaxed as
assed McVi
pparent rea
out behind
late had a b
me made “it
his is how t
ession, argu
nds to pull h
ecause the
lieved that
olated state
nd remand
April 2014
saw Herna
dez Flores
eed limit in
gripping
s many mo
icker, Hern
ason” and
d Hernande
bracket ove
t hard to as
the plate lo
No. 15‐151
uing that th
him over b
arresting o
t Hernande
e law, we v
for procee
4, an Illino
andez Flor
was drivin
n a “very sti
the steerin
otorists ope
nandez Flor
applied th
ez Flores an
er it.” The o
scertain wh
ooked:
15
he
be‐
of‐
ez
va‐
d‐
ois
es
ng
iff
ng
er‐
es
he
nd
of‐
hat

-- 2 of 9 --

No. 15‐1515 3
As McVicker neared Hernandez Flores, he could read the
uncovered portion of the plate but stopped him anyway. In‐
itially McVicker thought the plate was a “Colorado specialty
plate,” but he acknowledged that as he “got closer it ap‐
peared to read Baja California which is from Mexico.” The
officer asserted that the framing bracket may have been
“covering another state or region above Baja California.” He
explained that he then pulled over the vehicle for what he
believed was “the improper display of license plate due to it
covering a portion of Baja California and whatever may be
above it that was unknown.” See 625 ILCS 5/3‐413(b).
The plate‐display law, 625 ILCS 5/3‐413(b), states in rele‐
vant part:
Every registration plate shall at all times be
securely fastened in a horizontal position to the
vehicle for which it is issued so as to prevent
the plate from swinging and at a height of not
less than 5 inches from the ground, measuring
from the bottom of such plate, in a place and
position to be clearly visible and shall be main‐
tained in a condition to be clearly legible, free
from any materials that would obstruct the vis‐
ibility of the plate.
A violation of this statute is considered a “petty offense.”
Id. 5/16‐104; 730 ILCS 5/5‐1‐17.
The stop led to a drug arrest. Under questioning through
a translator, Hernandez Flores said that he was driving from
Tijuana, Mexico, to Columbus, Ohio. While McVicker was
writing a warning for the obstructed license plate, another
trooper and his canine partner arrived and conducted a

-- 3 of 9 --

4 No. 15‐1515
free‐air sniff around the car. The dog alerted, and when the
officers searched the car they found a compartment in the
engine containing more than five kilograms of heroin in
vacuum‐sealed bags. After Hernandez Flores was arrested
and read Miranda warnings, he confessed that he had been
paid $2,000 to drive the heroin from Mexico to Ohio. He was
charged with possession with intent to distribute one kilo‐
gram or more of heroin. See 21 U.S.C. § 841(a)(1).
During the prosecution, Hernandez Flores moved to
suppress his statements and the evidence seized from the
truck. He argued that McVicker did not have reasonable
suspicion to pull him over for violating the plate‐display law
because the plate’s frame did not obstruct any of the plate’s
identifying information. He emphasized that the govern‐
ment’s reading of the statute has the absurd result of crimi‐
nalizing not only all license‐plate frames, but mud spots
covering part of a letter. Because the statute was not violat‐
ed, he asserted, McVicker lacked reasonable suspicion to
stop him.
The judge denied the motion to suppress, reasoning that
the plate’s frame violated the plate‐display statute. He ob‐
served that the bracket covered the top half of the letters “B”
and “j” in “Baja,” the top half of the letters “C,” “l,” and “f”
in “California,” and some writing in the lower left of the
plate. Acknowledging that the statute does not outlaw “eve‐
ry speck” on a plate, he explained that it does ban any ob‐
struction that “interferes with” the visibility of the plate’s
information. And because the statute requires that a plate be
both “clearly legible” and “free from any materials that
would obstruct the visibility of the plate,” the judge con‐
cluded that the statute was violated even though the officer

-- 4 of 9 --

No. 15‐1515 5
could “decipher” the plate. Hernandez Flores then entered a
conditional guilty plea, reserving the right to appeal the de‐
nial of the motion to suppress, and was sentenced to 50
months in prison.
Analysis
Hernandez Flores maintains on appeal that the district
court should have granted his motion to suppress. He revis‐
es slightly the argument he presented in the district court,
which was that, because he did not violate the statute,
McVicker lacked reasonable suspicion to stop him. See Unit‐
ed States v. McDonald, 453 F.3d 958, 961 (7th Cir. 2006). Rec‐
ognizing that under Heien v. North Carolina, 135 S. Ct. 530,
534 (2014), only an unreasonable mistake of state law invali‐
dates a stop, he now argues that McVicker’s belief that the
statute was violated was unreasonable. He suggests that the
statute’s requirement that plates be “free from any materials
that would obstruct the visibility of the plate,” should be
read in context with “maintained in a condition to be clearly
legible.” In that context, the law bans only obstructions that
interfere with law enforcement’s ability to read the plate. Be‐
cause McVicker was able to read the plate, he thus unrea‐
sonably believed that it violated Illinois law. McVicker’s
reading of the law, by contrast, leads to the absurd result
that law enforcement may stop anyone using a customary
frame to affix a license plate to a car.
To begin, the parties dispute the proper standard of re‐
view. Hernandez Flores advocates for de novo review be‐
cause this court is reviewing a legal conclusion about rea‐
sonable suspicion. The government urges plain‐error review
because, it asserts, Hernandez Flores did not argue to the
district court that McVicker made an “unreasonable mistake

-- 5 of 9 --

6 No. 15‐1515
of law” under Heien. See United States v. Kelly, 519 F.3d 355,
365 (7th Cir. 2008) (arguments not made before district court
are subject to plain‐error review). But Heien, which was re‐
leased after the district court denied the motion to suppress,
arguably replaced the pre‐existing standard in our circuit
under McDonald on which Hernandez Flores had relied.
McDonald had invalidated arrests based on a reasonable but
erroneous interpretation of state law. Hernandez Flores’s
appellate argument is thus a permissible, updated version of
his preserved argument that reasonable suspicion is lacking.
See United States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008)
(new twist on old argument preserved for appellate review);
see also Molnar v. Booth, 229 F.3d 593, 599 (7th Cir. 2000) (ap‐
plying intervening Supreme Court decisions on de novo re‐
view of a preserved issue). Accordingly the argument is sub‐
ject to de novo review.
On the merits, the parties agree that before making a
brief traffic stop, police officers need at least reasonable sus‐
picion to believe that the driver is breaking the law.
See Navarette v. California, 134 S. Ct. 1683, 1687 (2014). In par‐
ticular, this court has recently held that a stop for a technical
moving violation was lawful when the arresting officer rea‐
sonably believed that the violation was easily avoidable.
See United States v. Bentley, No. 13‐2995, 2015 WL 4529024, at
*3 (7th Cir. July 28, 2015) (ruling that officer reasonably
stopped driver for not signaling lane change, when law re‐
quires signaling if “practicable”). Reasonable suspicion can
also rest on a reasonable mistake of law. See Heien, 135 S. Ct.
at 536. But if the officer’s mistake of law is unreasonable, the
evidence collected from the traffic stop should be sup‐
pressed. See id. at 539; United States v. Shields, 789 F.3d 733,
742–46 (7th Cir. 2015). Thus to prevail here, Hernandez Flo‐

-- 6 of 9 --

No. 15‐1515 7
res must show both that his plate’s frame did not violate the
law and that Officer McVicker unreasonably believed that it
did.
We begin with the question whether Hernandez Flores’s
frame violated the plate‐display statute and conclude that it
did not. The Illinois Supreme Court has recently held that
“trailer hitches, … wheelchair and scooter carriers, bicycle
racks and rental trailers” will obstruct a license plate, but
nonetheless plates obscured by these common car attach‐
ments do not violate the statute. People v. Gaytan, 32 N.E.3d
641, 650 (Ill. 2015). Otherwise “a substantial amount” of law‐
ful conduct would be illegal in Illinois. Id. Plate frames like
those in this case fall in the same category. Like rear‐
mounted trailers, they are common—car dealerships regu‐
larly provide them with the cars they sell, and Illinois’s pub‐
lic universities, sports teams, and schools sell them to stu‐
dents, fans, and families. Rear‐mounted trailers can obstruct
the entirety of “at least one of the numbers on the license
plate.” Id. at 645. Plate frames, by contrast, generally sur‐
round the periphery of the plate, leaving the numbers and
place of origin readable. If, as Illinois has determined, com‐
mon rear‐mounted trailers do not violate the statute, then
neither can ordinary peripheral plate frames. See United
States v. Edgerton, 438 F.3d 1043, 1050 (10th Cir. 2006) (reject‐
ing strict reading of similar statute because it would lead to
unreasonable conclusion that snow, rain, or fog would ren‐
der license plate illegal); Whitfield v. United States, 99 A.3d
650, 652 (D.C. 2014) (rejecting literal interpretation of similar
statute that would “effectuate a near‐complete ban on the
use of ubiquitous license plate frames”).

-- 7 of 9 --

8 No. 15‐1515
But was it reasonable for Officer McVicker to conclude
that the plate’s frame violated this statute? We think not.
Long before Gaytan, Illinois courts had held that the plate‐
display statute requires only that the plate’s information be
clearly visible and legible. People v. Miller, 611 N.E.2d 11, 20
(Ill. App. Ct. 1993) (plate must be clearly visible); People v.
Bradi, 437 N.E.2d 1285, 1288 (Ill. App. Ct. 1982) (plate must
be legible). And in holding that a plate obscured by a trailer
hitch does not the violate the statute, Gaytan ruled that the
arresting officer reasonably believed otherwise when he tes‐
tified that he could not in fact see “at least one” of the plate’s
numbers. 32 N.E.3d at 652–53. But in this case, even though
the frame covered a fraction of some letters, McVicker
acknowledged that once he neared the car he could read
“Baja California” on the plate. And based on the record pho‐
tos in this case, that admission is one we would expect a rea‐
sonable officer to make. Even though some letters are not
100% unobstructed, “Baja California” is clearly visible and
legible. If the frame does not impede a reasonable officer
from reading a plate, then it is unreasonable to believe that
the plate’s information is not clearly visible and legible.
The government replies that even though the uncovered
information was readable, McVicker reasonably suspected
that the frame masked information above the top lettering,
so the entire plate was not clearly visible. But that possibility
proves too much: it is true of all similar frames. If McVick‐
er’s suspicion—that the frame covered “another state or re‐
gion” in the plate’s periphery—were reasonable, then it
would justify stopping any of the vast number of cars driven
lawfully but affixing plates with the ubiquitous frames like
the one in this case. A suspicion so broad that would permit
the police to stop a substantial portion of the lawfully driv‐

-- 8 of 9 --

No. 15‐1515 9
ing public, unless the drivers all removed their plate frames,
is not reasonable. See United States v. Alvarado‐Zarza, 782 F.3d
246, 250 (5th Cir. 2015) (interpreting statute too broadly is
unreasonable); United States v. $45,000.00 in U.S. Currency,
749 F.3d 709, 716 (8th Cir. 2014) (it is objectively unreasona‐
ble to interpret similar statute as meaning anything other
than “readable” when case law establishes “readability”
standard); Whitfield, 99 A.3d at 652 (literal interpretation of
statute would unreasonably “effectuate a near‐complete ban
on the use of ubiquitous license plate frames”). It seems to us
unrealistic—and unreasonable—to expect a wide segment of
the driving population to remove these conventional plate
frames in order to avoid a traffic stop. See Delaware v. Prouse,
440 U.S. 648, 661 (1979) (observing that courts must circum‐
scribe “standardless and unconstrained discretion” that
would otherwise allow officers to stop all drivers); United
States v. Lopez‐Valdez, 178 F.3d 282, 289 (5th Cir. 1999) (if of‐
ficers are allowed to stop vehicles when drivers have not
broken law, “the potential for abuse of traffic infractions as
pretext for effecting stops seems boundless and the costs to
privacy rights excessive”). Accordingly, the stop was based
on an unreasonable mistake of law and therefore lacked rea‐
sonable suspicion.
Because the traffic stop was not based on reasonable sus‐
picion, the drugs seized and confession resulting from the
stop should have been suppressed. We therefore VACATE
the district court’s judgment and REMAND for further pro‐
ceedings consistent with this opinion.

-- 9 of 9 --