Where the trial court finds the State's primary or only witness at a suppression hearing to lack credibility, the trial court does not err in granting the defendant's motion to suppress. See People v. Stehman , 203 Ill.2d 26, 33, 270 Ill.Dec. 426, 783 N.E.2d 1 (2002) ; People v. Luna , 322 Ill.App.3d 855, 860, 256 Ill.Dec. 597, 752 N.E.2d 477 (2001) ; People v. Boston , 73 Ill.App.3d 107, 109–10, 29 Ill.Dec. 240, 391 N.E.2d 503 (1979). Because Bishoff was the only witness to testify at the suppression hearing and the trial court questioned his credibility, the trial court properly granted defendant's motion to suppress.
defendant's motion to suppress. See People v. Stehman, 203 Ill. 2d 26, 33 (2002); People v. Luna, 322 Ill. App. 3d 855, 860 (2001); People v. Boston, 73 Ill. App. 3d 107, 109-10 (1979). Because Bishoff was the only witness to testify at the suppression hearing and the trial court questioned his credibility, the trial court properly granted defendant's motion to suppress.
We are in agreement with these contentions. • 1 The burden of going forward with evidence to demonstrate legal justification shifts to the State in a suppression hearing once a defendant proves that a warrantless search has occurred and that the defendant was doing nothing unusual at the time of the search ( People v. Boston (1979), 73 Ill. App.3d 107, 111, 391 N.E.2d 503.) However, the State is required to demonstrate the validity of a search only by a preponderance of the evidence.
We therefore address the question whether the record shows that the car in which defendant was a passenger was properly stopped. • 2 Once defendant has established that a warrantless search was conducted and he was doing nothing unusual at the time, the burden of going forward with the evidence to show the legal propriety for the search shifts to the State. ( People v. Boston (1979), 73 Ill. App.3d 107, 111, 391 N.E.2d 503.) The record here shows that defendant was merely riding in an automobile during mid-morning.
It must be remembered in this regard that once the defendant offered evidence that he was arrested in his home without a warrant at a time when he was violating no law the burden was on the State to prove the lawfulness of the arrest. ( People v. Nash (1979), 78 Ill. App.3d 172, 177, 397 N.E.2d 480, 484; People v. Boston (1979), 73 Ill. App.3d 107, 111, 391 N.E.2d 503, 506; People v. Talley (1975), 34 Ill. App.3d 506, 340 N.E.2d 167.) As Justice Lorenz said in People v. Watson (1986), 145 Ill. App.3d 492, 499, 495 N.E.2d 1153, 1158: "Once a defendant establishes the illegality of the arrest and its connection with the alleged fruit, the prosecution has the burden of establishing by clear and convincing evidence that the challenged statement was obtained by means sufficiently distinguishable to be purged of the primary taint."