People v. Luedemann

Docket No. 100914.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DEREK M. LUEDEMANN, Appellee.

Opinion filed October 5, 2006.

CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier
concurred in the judgment and opinion.
Justice Burke took no part in the decision.

OPINION

Defendant, Derek M. Luedemann, was charged with driving
under the influence of alcohol (DUI) (625 ILCS 5/11B501(a)(2)
(West 2002)) and illegal transportation of alcohol (625 ILCS
5/11B502(a) (West 2002)). In a separate case, defendant was charged
with unlawful possession of a controlled substance (a
methylenedioxy amphetamine derivative) (720 ILCS 570/402(c)
(West 2002)). Defendant moved to quash his arrest and suppress
evidence in both cases. Additionally, he petitioned to rescind the
statutory summary suspension of his driver=s license. The basis for
the motions was that there was no warrant for his arrest and that the
arresting officer had neither probable cause nor a reasonable
articulable suspicion that defendant was engaged in criminal activity.
In the DUI case, the circuit court of Kane County granted both the
motion to suppress and the petition to rescind the statutory summary
suspension. Defendant then moved in the controlled substances case
to bar the State from contesting the motion to suppress. The trial
court granted the motion, ruling that the State was collaterally
estopped from contesting the motion to suppress. The State filed a
certificate of impairment and appealed, arguing that the trial court in
the DUI case erred in granting the motion to suppress and that the
trial court in the controlled substances case erred when it granted the
motion to collaterally estop the State from contesting the motion to
suppress. The appellate court, with one justice dissenting, affirmed in
part and vacated in part. 357 Ill. App. 3d 411. In the DUI case, the
appellate court affirmed the trial court=s granting of the motion to
suppress. However, the court also held that the State was not
collaterally estopped from contesting the motion to suppress in the
controlled substances case because, at the time the trial court made
the collateral estoppel ruling, the trial court=s decision in the DUI
case was on appeal and not yet final. 357 Ill. App. 3d at 426. We
allowed the State=s petition for leave to appeal. 177 Ill. 2d R. 315.

BACKGROUND
Officer Eric Pate of the Hampshire police department was the
sole witness to testify at the hearing on defendant=s petition to rescind
the statutory summary suspension of his driver=s license, and Officer
Pate=s testimony was also considered by the trial court in ruling on
defendant=s motion to suppress in the DUI case. Officer Pate testified
that he was on patrol in a residential neighborhood on August 17,
2002, at approximately 2:40 a.m. He was driving west on Julie Street
when he saw defendant sitting in the driver=s seat of a car parked in
front of 305 Julie Street. The car was legally parked and facing east.
Officer Pate noticed that defendant was smoking a cigarette. As
Officer Pate=s car came closer to defendant=s, he saw defendant reach
toward the floorboard on the passenger side of the car. Officer Pate=s
car was approximately 25 to 30 feet away from defendant=s car at this
time. Defendant then returned to a seated position, and, as Officer
Pate=s car approached, defendant slumped down approximately six to
eight inches in his seat.

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 Officer Pate drove past defendant=s vehicle and parked in the
center of the street, with his car still facing west. Officer Pate exited
his vehicle and approached defendant=s car from the rear driver=s side.
Defendant had his window rolled down, and he was listening to the
car=s stereo. As Officer Pate approached, defendant turned off the
car=s engine. Officer Pate had not asked him to do so. When Officer
Pate was at the rear quarter panel of the vehicle, he noticed the neck
of a brown glass bottle. The bottle was on the floor in front of the
passenger seat. Officer Pate could see the top two or three inches of
the bottle because he was illuminating the vehicle with his flashlight.
Officer Pate noticed that the bottle was uncapped. Officer Pate asked
defendant what he was doing there, and he also asked for defendant=s
identification. Defendant provided his identification and explained
that he was waiting for his girlfriend to return home. Defendant
pointed to his girlfriend=s house but said that he did not know the
address. Officer Pate explained that he had decided to question
defendant about what he was doing because within the last week
there had been vehicles damaged and three homes burglarized on
Julie Street. The burglaries occurred between 5 p.m. and 8 a.m.
However, the police had no description of the perpetrator or of the
perpetrator=s vehicle.
While Officer Pate was speaking to defendant, he noticed that
defendant=s speech was slurred and that his eyes were bloodshot and
glassy. Additionally, Officer Pate could smell alcohol on defendant=s
breath. Because Officer Pate observed signs of intoxication, he
radioed for another officer to join him. Officer Pate then pulled his
squad car directly behind defendant=s car and activated his car=s
videotape system. Officer Harris arrived on the scene, and the two
officers approached defendant=s vehicle, one on each side. Harris
found an open Miller Lite bottle on the floor of the passenger side of
defendant=s vehicle, in the same spot where Officer Pate had
previously noticed an open bottle. Officer Pate asked defendant to
step out of the vehicle. Officer Pate then asked defendant if he could
pat him down for weapons, and defendant agreed. Officer Pate found
no weapons. He then instructed Officer Harris to remove the bottle
from the vehicle. Harris said that the bottle was one-third full and
cool to the touch. Officer Pate could see condensation on the bottle.
Defendant admitted that he had been drinking, and he agreed to
perform field sobriety tests. Defendant subsequently failed the

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horizontal gaze nystagmus test, the nine-step walk-and-turn test, the
one-leg stand test, and the finger-to-nose test. Officer Pate then told
defendant that he believed defendant was under the influence of
alcohol, and he placed defendant under arrest. Defendant protested
that he had been parked, and Officer Pate explained to him that he
had been in physical control of a motor vehicle. After defendant was
arrested, the officers searched his vehicle and found a substance
containing a methylenedioxy amphetamine derivative.
At the close of Officer Pate=s testimony, the circuit court granted
the petition to rescind the statutory summary suspension. The court
found that Officer Pate had neither probable cause for an arrest nor a
reasonable suspicion of criminal activity sufficient to justify a Terry
stop. The State moved to reconsider, arguing that the court=s ruling
was erroneous because Officer Pate did not seize defendant until after
he observed signs of intoxication. The State cited cases holding that
the police do not violate the fourth amendment merely by
approaching a person in public and asking him questions. See
Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216,
80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762 (1984); People v. Love,
199 Ill. 2d 269, 278 (2002). Thus, according to the State, Officer Pate
was entitled to approach defendant and ask him questions, provided
that he did not make a show of authority sufficient to transform the
encounter into a seizure. The State argued that no seizure occurred
until Officer Pate asked defendant to step out of the car and, at that
time, a Terry stop was warranted because Officer Pate had a
reasonable suspicion that defendant was intoxicated while in control
of a motor vehicle. Alternatively, the State argued that, even if
Officer Pate did seize defendant prior to asking him to step out of the
vehicle, defendant=s behavior was sufficiently suspicious to justify a
stop under Terry. The circuit court denied the motion in a written
order, without comment.
Relying on the findings it made in granting the petition to rescind
the statutory summary suspension, the circuit court later granted the
motion to quash arrest and suppress evidence. The State moved for
more detailed findings, arguing that the court=s findings were
insufficient in that there were no findings of fact or any determination
as to when the stop occurred. The State also moved to reconsider the
order quashing arrest and suppressing evidence.

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 At a hearing on the State=s motions, the circuit court agreed to
make more detailed findings. The court stated the following for the
record:
AAs I review the transcript the first witness to testify was
Officer Eric Pate of the Hampshire police department. Officer
Pate=s testimony from Page 6 through Page 11 essentially says
that he was driving his car and he saw a person sitting in a parked
car smoking a cigarette, and that he saw him lean forward and
then ultimately slouched down a little bit. And on that basis he
made a U turn, pulled in behind him and essentially conducted a
stop. 1
The Court finds, for the record, that on that basis Officer Pate,
using good policeman intuition, stopped the vehicle. But in fact,
his intuition, while ultimately turned up something, was really
nothing more than a hunch. And I think as I stated at the time in
Terry versus Ohio and as that case has been synthesized by the
Second District, a hunch is not enough.
So, with regard to a more detailed finding, the court finds that
Officer Pate=s testimony is pretty straightforward and that he was
operating, my view of his testimony was he was operating on a
hunch. Now, that hunch turned out to be something that all
policemen hope that their hunches turn out to be, but it was
nothing more than a hunch.@
Following arguments on the State=s motion to reconsider, the
court entered a written order denying the motion. That order stated:
ATHIS CAUSE, coming on for ruling on the state=s motion to
reconsider the order to quash arrest and suppress arrest [sic]; and

1
The circuit court misread the transcript. Officer Pate did not conduct a
U-turn and pull in behind the defendant at this time. Rather, Officer Pate
parked in the middle of the street, with his car facing in the opposite
direction. It was not until after he observed signs of intoxication and radioed
for backup that he pulled his car in behind defendant=s.

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 the court having considered the evidence and arguments of
counsel and having weighed the said evidence; Finds: the
officer=s testimony regarding burglaries was creditable but not
sufficient for the court to conclude that the area of the arrest was
a high crime area. The officer essentially saw a young man sitting
in a car smoking a cigarette. This conduct is not sufficient to
warrant the approach and questioning that took place.@
The State filed a certificate of impairment and appealed pursuant to
Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)).
The appellate court affirmed, with one justice dissenting. 357 Ill.
App. 3d 411. The appellate court first rejected the State=s argument
that Officer Pate was acting in a community caretaking or public
safety function when he approached defendant=s vehicle. 357 Ill. App.
3d at 418-20. Next, the appellate court held that Officer Pate did not
have reasonable, articulable suspicion of criminal activity sufficient
to justify a Terry stop. Central to the appellate court=s holding was its
belief that defendant was seized before Officer Pate observed an open
bottle in defendant=s vehicle. 357 Ill. App. 3d at 420. The court
acknowledged that none of the factors set forth in the lead opinion in
United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S.
Ct. 1870 (1980), 2 were present in this case. 357 Ill. App. 3d at 423.
However, the court held that the absence of Mendenhall factors Asays
virtually nothing@ (357 Ill. App. 3d at 423) and instead found a
seizure based upon three other factors. First, Officer Pate stopped his
squad car in the middle of the road. The court believed that, by doing
so, Officer Pate was demonstrating his authority as a police officer.
The court noted that private citizens are not allowed to park in the
middle of the street and that Officer Pate communicated a sense of
urgency by parking in this manner. 357 Ill. App. 3d at 421. The court
believed that Officer Pate should have simply pulled alongside

2
The seizure analysis in Justice Stewart=s opinion in Mendenhall was
joined only by Justice Rehnquist. However, by the time the court decided
Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), it
was apparent that a majority of the court had endorsed the Mendenhall test.
See 4 W. LaFave, Search & Seizure '9.4(a), at 412 (4th ed. 2004); see also,
e.g., Delgado, 466 U.S. at 215, 80 L. Ed. 2d at 255, 104 S. Ct. at
1762.

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defendant=s car and asked him questions because this would have
communicated Anothing more than a casual encounter on the street.@
357 Ill. App. 3d at 422. Second, Officer Pate was shining a flashlight
around and into defendant=s car as he approached. 357 Ill. App. 3d at
421. Third, Officer Pate approached from the rear driver=s side
quarter panel instead of Awalking up to the window as an ordinary
citizen typically would.@ 357 Ill. App. 3d at 421. The court concluded
that the presence of these three factors meant that a reasonable person
would not have felt free to leave. 357 Ill. App. 3d at 421. After
concluding that defendant was seized before Officer Pate observed an
open bottle in the vehicle, the court considered the propriety of the
seizure by addressing whether Officer Pate had a reasonable,
articulable suspicion of criminal activity sufficient to justify a Terry
stop. The court concluded that defendant=s actions in slouching down
and reaching toward the floorboard of his car at 2:40 in the morning,
on a street that had experienced recent burglaries, was insufficient for
Officer Pate to have a reasonable, articulable suspicion that defendant
was involved in a crime. 357 Ill. App. 3d at 424-25. Accordingly, the
court upheld the suppression of evidence in the DUI case. The court
also held that the State was not collaterally estopped from contesting
the suppression motion in the controlled substances case, because the
the DUI suppression order was on appeal and thus not final when the
trial court made its collateral estoppel ruling. 357 Ill. App. 3d at 426.
Presiding Justice O=Malley dissented. The dissent agreed with the
majority=s conclusion that Officer Pate was not acting in a community
caretaking or public safety function when he approached defendant=s
vehicle. The dissent disagreed, however, with the majority=s
conclusion that defendant was seized as Officer Pate approached
defendant=s car on foot. The dissent was sharply critical of the
majority=s approach, which looked to whether Officer Pate was acting
like a private citizen or a police officer as he approached defendant=s
vehicle. The dissent noted that the majority was adopting a rule that
Apolice must act as little like police as possible, lest a seizure occur@
(357 Ill. App. 3d at 429 (O=Malley, P.J., dissenting)), and argued that
such an approach was incompatible with controlling precedent from
the United States Supreme Court and this court. Citing People v.
Gherna, 203 Ill. 2d 165, 179 (2003), the dissent stated that an
individual is not seized for fourth amendment purposes when the
police merely ask questions of an individual, so long as the officer

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does not convey by words or actions that compliance is required. 357
Ill. App. 3d at 433-34 (O=Malley, P.J., dissenting). More specifically,
the dissent noted that A >the mere approaching and questioning of a
person seated in a parked vehicle does not constitute a seizure.= @ 357
Ill. App. 3d at 434 (O=Malley, P.J., dissenting), quoting People v.
Murray, 137 Ill. 2d 382, 391 (1990). The dissent argued that Officer
Pate=s initial encounter with defendant was no more coercive than the
encounter in Murray, which this court found not to be a seizure. 357
Ill. App. 3d at 434 (O=Malley, P.J., dissenting). Further, the dissent
observed that, in Murray, this court relied on the absence of the
Mendenhall factors in determining that no seizure had occurred. 357
Ill. App. 3d at 434 (O=Malley, P.J., dissenting), citing Murray, 137 Ill.
2d at 390-91.
Addressing each of the three factors that the majority found
indicative of a seizure, the dissent concluded that none of them were
inherently coercive. First, as to the majority=s suggestion that Officer
Pate should have pulled alongside the defendant=s vehicle instead of
driving past it and parking in the center of the street, the dissent
argued that this would have been more coercive because Officer Pate
would have been blocking defendant=s car in its space. As to the
majority=s concern that the law does not allow private citizens to park
in the middle of the street, the dissent argued that the law also does
not allow private citizens to double park cars in order to carry on
conversations with occupants of other vehicles. 357 Ill. App. 3d at
431 (O=Malley, P.J., dissenting). Second, the dissent addressed the
majority=s concern about Officer Pate=s use of a flashlight by citing
cases holding that the shining of a flashlight into a car is not
inherently coercive (see People v. Holdman, 73 Ill. 2d 213, 220
(1978); People v. Erby, 213 Ill. App. 3d 657, 662 (1991)). 357 Ill.
App. 3d at 432 (O=Malley, P.J., dissenting). Third, as to the angle of
Officer Pate=s approach to the vehicle, the dissenting justice stated
that he did not understand the majority=s Ageometrical analysis.@ 357
Ill. App. 3d at 432 (O=Malley, P.J., dissenting). The dissent disputed
the majority=s assertion that a private citizen would walk right up to
the window rather than approaching from the rear. The dissent
contended that the trajectory of a private citizen=s approach to the car
would be determined from where he began his approach. 357 Ill.
App. 3d at 432 (O=Malley, P.J., dissenting). The dissent argued that
officers approach from the rear out of concern for their safety, and

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that the majority=s requirement that the police do not use such tactics
could have Atruly lethal effects.@ 357 Ill. App. 3d at 432 (O=Malley,
P.J., dissenting). For all of these reasons, the dissent predicted that
reversal by this court was inevitable. 357 Ill. App. 3d at 435
(O=Malley, P.J., dissenting). We allowed the State=s petition for leave
to appeal. 177 Ill. 2d R. 315. Additionally, we granted the Fraternal
Order of Police of Illinois leave to submit an amicus curiae brief in
support of the State.

ANALYSIS
The State raises two issues. First, the State argues that the
appellate court erred in determining that defendant was seized before
Officer Pate observed an open bottle in his vehicle. The State
contends that the seizure did not occur until after Officer Pate
observed an open bottle and signs of intoxication. Alternatively, the
State contends that, even if Officer Pate effectuated a Terry stop prior
to observing the open bottle, the stop was supported by a reasonable
suspicion that defendant was engaged in criminal activity. The State
has abandoned its argument that Officer Pate was acting in a
community caretaking or public safety capacity when he approached
defendant=s vehicle.

Standard of Review
In reviewing a trial court=s ruling on a motion to suppress
evidence, we apply the two-part standard of review adopted by the
Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 134 L.
Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). Under this standard, a
trial court=s findings of historical fact should be reviewed only for
clear error, and a reviewing court must give due weight to any
inferences drawn from those facts by the fact finder. Ornelas, 517
U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. In other words,
we give great deference to the trial court=s factual findings, and we
will reverse those findings only if they are against the manifest
weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431
(2001). A reviewing court, however, remains free to undertake its
own assessment of the facts in relation to the issues and may draw its
own conclusions when deciding what relief should be granted. People
v. Pitman, 211 Ill. 2d 502, 512 (2004). Accordingly, we review de

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novo the trial court=s ultimate legal ruling as to whether suppression
is warranted. 3 Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S.
Ct. at 1663; Pitman, 211 Ill. 2d at 512; Sorenson, 196 Ill. 2d at 431.

Timing of the Seizure
The critical issue in this case is the timing of the seizure. The
State argues that the seizure did not occur until after Officer Pate

3
We briefly note that in People v. Caballes, 221 Ill. 2d 282, 289 (2006),
we stated, A >[W]hen a trial court=s ruling on a motion to suppress evidence
involves factual determinations and credibility assessments,= the ruling will
not be disturbed on appeal unless it is manifestly erroneous.@ This sentence
quoted Sorenson=s description of the pre-Sorenson standard of review, but
only for purposes of describing why we were reviewing the trial court=s
finding that Athe police dog *** was well trained and sufficiently reliable@
under the manifest weight of the evidence standardBi.e., because that
finding was a factual determination to which deference was owed. See
Caballes, 221 Ill. 2d at 289. To avoid any future confusion, we clarify that,
in Caballes, we did not intend to revert to the pre-Sorenson standard of
review. Indeed, in Caballes, we went on to conclude that A[o]n the record
before us, we find no basis for concluding that the trial court=s finding of
reliability was manifestly erroneous@ (emphasis added) (Caballes, 221 Ill.
2d at 335), by which we meant that the factual determination subject to our
review was not against the manifest weight of the evidence.

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observed an open bottle in the vehicle and noticed that defendant was
exhibiting signs of intoxication. These observations obviously gave
Officer Pate the reasonable suspicion necessary to detain defendant
and to investigate further. Defendant contends, however, that the
appellate court correctly determined that the seizure occurred prior to
Officer Pate=s observation of the open bottle. Defendant argues that
he was seized for fourth amendment purposes when Officer Pate
parked his vehicle in the middle of the street and approached
defendant=s car from the rear, while illuminating the car with a
flashlight. Thus, according to defendant, we must determine whether
Officer Pate had a reasonable suspicion of criminal activity sufficient
to effectuate a seizure before he observed the open bottle. Defendant
contends that the lower courts correctly concluded that such
reasonable suspicion was lacking. We agree with the State that no
seizure occurred until after Officer Pate had a reasonable suspicion
that defendant was intoxicated while in control of a motor vehicle and
thus do not address whether Officer Pate had a reasonable suspicion
of criminal activity when he first approached defendant=s vehicle.

The Three Tiers of Police-Citizen Encounters
It is well settled that not every encounter between the police and a
private citizen results in a seizure. Delgado, 466 U.S. at 215, 80 L.
Ed. 2d at 254, 104 S. Ct. at 1762; People v. White, 221 Ill. 2d 1, 21
(2006). Courts have divided police-citizen encounters into three tiers:
(1) arrests, which must be supported by probable cause; (2) brief
investigative detentions, or ATerry stops,@ which must be supported
by a reasonable, articulable suspicion of criminal activity; and (3)
encounters that involve no coercion or detention and thus do not
implicate fourth amendment interests. United States v. Black, 675
F.2d 129, 133 (7th Cir. 1982); United States v. Berry, 670 F.2d 583,
591 (5th Cir. 1982). Third-tier encounters are also known as
consensual encounters. Gherna, 203 Ill. 2d at 177. Previously, when
listing the three tiers of police-citizen encounters, this court has often
used imprecise language. This court has frequently referred to the
third tier as the Acommunity caretaking function.@ See, e.g., White,
221 Ill. 2d at 21; People v. Smith, 214 Ill. 2d 338, 351-52 (2005);
People v. Murray, 137 Ill. 2d 382, 387 (1990). The appellate court,
both in this case and other cases, has been critical of this court=s use

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of the label Acommunity caretaking@ to describe third-tier consensual
encounters. See 357 Ill. App. 3d at 418-20; People v. James, 365 Ill.
App. 3d 847, 851 (2006); People v. Mitchell, 355 Ill. App. 3d 1030,
1033-34 (2005). The use of this label is traceable to Murray, in which
this court cited Berry for the three tiers, but then added an incorrect
explanatory sentence. Initially, Murray properly stated that the third
tier Ainvolves no coercion or detention and therefore does not involve
a seizure.@ Murray, 137 Ill. 2d at 387. Murray then incorrectly stated
that A[t]his tier is commonly known as the community caretaking
function or public safety function.@ Murray, 137 Ill. 2d at 387. No
citation to authority was provided for this assertion.

In Collins v. State, 1993 WY 83, 854 P.2d 688, the Supreme
Court of Wyoming collected the state and federal cases that have
recognized, either explicitly or implicitly, the three tiers, and this
court=s decision in Murray was the only one to refer to the third tier
as Acommunity caretaking.@ See Collins, 1993 WY 83, &10 nn.3, 4,
854 P.2d at 692 nn.3, 4 (collecting cases). 4 That courts do not
generally refer to the third tier as community caretaking makes sense.
Third-tier encounters are consensual encounters involving no
coercion or detention. ACommunity caretaking,@ rather than
describing a tier of police-citizen encounter, refers to a capacity in
which the police act when they are performing some task unrelated to

4
Since Collins was decided, courts in three other statesBNew Mexico,
North Dakota, and TennesseeBhave referred to the third tier as Acommunity
caretaking.@ In State v. Ryon, 137 N.M. 174, 183, 108 P.3d 1032, 1041
(2005), the Supreme Court of New Mexico acknowledged its mistake and
overruled those cases that had used community caretaking as a label to
describe voluntary or consensual encounters. North Dakota began using the
label in State v. Halfman, 518 N.W.2d 729, 730 (N.D. 1994). The three
cases it cited for this proposition were Murray, United States v. Hernandez,
854 F.2d 295 (8th Cir. 1988), and Thompson v. State, 303 Ark. 407, 797
S.W.2d 450 (1990). Neither Hernandez nor Thompson refer to the third tier
as community caretaking, so it appears that North Dakota=s use of the label
has its origins in this court=s decision in Murray. Tennessee began using the
label in State v. Hawkins, 969 S.W.2d 936, 939 (Tenn. Crim. App. 1997).
Like this court in Murray, the Tennessee court cited the Fifth Circuit=s
decision in Berry for this proposition, and Berry contains no such statement.

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the investigation of crime. See D. Livingston, Police, Community
Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261,
261-63, 272 (1998) (noting that A[p]olice spend relatively less time
than is commonly thought investigating violations of the criminal
law@ and spend a good deal of time performing such functions as
responding to heart attack victims, helping children find their parents,
helping inebriates find their way home, responding to calls about
missing person or sick neighbors, mediating noise disputes,
responding to calls about stray or injured animals, investigating
premises left open at night, taking lost property into their possession,
and removing abandoned property). Courts use the term Acommunity
caretaking@ to uphold searches or seizures as reasonable under the
fourth amendment when police are performing some function other
than investigating the violation of a criminal statute. When a search is
involved, courts use the term Acommunity caretaking@ to describe an
exception to the warrant requirement. See, e.g., United States v.
Coccia, 446 F.3d 233, 238 (1st Cir. 2006); United States v. Johnson,
410 F.3d 137, 143-44 (4th Cir. 2005).
The community caretaking exception was first set forth by the
Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d
706, 93 S. Ct. 2523 (1973). In that case, a Chicago police officer who
had been drinking was involved in an automobile accident in
Wisconsin. The Wisconsin officers who responded to the scene were
under the impression that Chicago police officers were required to
carry their service revolvers with them at all times. Before the car
was towed from the scene, the Wisconsin officers looked in the glove
box and the front-seat area to see if they could locate the revolver. No
revolver was found in those areas, and the automobile was towed to a
garage. One of the officers later went to the garage and searched the
passenger compartment and trunk. The officer testified that
attempting to retrieve a weapon in these situations was standard
police procedure. The purpose of this procedure was to prevent the
public from Athe possibility that a revolver would fall into untrained
or perhaps malicious hands.@ Cady, 413 U.S. at 443, 37 L. Ed. 2d at
716, 93 S. Ct. at 2529. The officer did not find the revolver, but he
did find various bloody items, and the question was whether they
could later be used in a murder prosecution against the Chicago
officer. The Supreme Court upheld the search as reasonable under the
fourth amendment. The Court explained that A[l]ocal police officers,

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unlike federal officers, frequently investigate vehicle accidents in
which there is no claim of criminal liability and engage in what, for
want of a better term, may be described as community caretaking
functions, totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.@
Cady, 413 U.S. at 441, 37 L. Ed. 2d at 714-15, 93 S. Ct. at 2528. The
search was reasonable because it was undertaken to protect the safety
of the general public. Cady, 413 U.S. at 447, 37 L. Ed. 2d at 718, 93
S. Ct. at 2531. The Court also noted that at the time the Wisconsin
officer searched the car, he was unaware that a murder had been
committed. Cady, 413 U.S. at 447, 37 L. Ed. 2d at 718, 93 S. Ct. at
2531.
An example of a seizure upheld under the community caretaking
exception is found in State v. Chisholm, 39 Wash. App. 864, 696 P.2d
41 (1985). In that case, a police officer in an unmarked car noticed a
pickup truck that had a hat on top of it. He tried unsuccessfully to get
the driver=s attention, and then radioed ahead to an officer in a
marked vehicle. The second officer stopped the defendant=s vehicle to
tell him about the hat, and, upon approaching, noticed an open can of
beer in plain view. The court upheld the stop under the community
caretaking exception, noting that Aan individual=s interest in
proceeding about his business unfettered by police interference must
be balanced against the public=s interest in having police officers
perform services in addition to the traditional enforcement of penal
and regulatory laws.@ Chisholm, 39 Wash. App. at 867, 696 P.2d at
43.
The courts in these cases upheld the searches or seizures as
reasonable because the police were acting in a community caretaking
or public safety function. The analysis had nothing to do with the
encounters being consensual. Because the officer in Chisholm
stopped the defendant=s vehicle, the encounter could not be said to
have involved no detention. The defendant in Cady did not consent to
the search of his vehicle. Indeed, if Acommunity caretaking@ was just
another name for consensual encounters, there would have been no
need for the Supreme Court to formulate the exception in the first
place. To be sure, a police officer acting in a community caretaking
function can engage in a consensual encounter. For instance, if a
police officer stops to aid a person whose vehicle has broken down
on the side of the highway and then notices an open bottle of alcohol

-14-
in the car, the officer would be both acting in his community
caretaking function and engaging in a consensual encounter.
However, because the act of stopping to assist a stranded motorist
would not have been a seizure in the first place, a court would have
no need to invoke the community caretaking exception.
It is clear, then, that the Acommunity caretaking@ doctrine is
analytically distinct from consensual encounters and is invoked to
validate a search or seizure as reasonable under the fourth
amendment. It is not relevant to determining whether police conduct
amounted to a seizure in the first place. Those cases such as White,
Smith, and Murray, that refer to the third tier of police-citizen
encounters as Acommunity caretaking,@ should no longer be followed
for that point. Similarly, cases such as People v. Gonzalez, 204 Ill. 2d
220, 224 (2003), that state that Acommunity caretaking@ is a label to
describe consensual encounters should no longer be followed on that
specific point.
This court=s error in describing the third tier is not without
consequence. If the third tier of police-citizen encounters is referred
to as Acommunity caretaking,@ that would suggest that if the police
lack a reasonable, articulable suspicion of criminal activity, they may
not approach a citizen unless they are acting in a community
caretaking function. This is obviously not the case, as the law clearly
provides that a police officer does not violate the fourth amendment
merely by approaching a person in public to ask questions if the
person is willing to listen. United States v. Drayton, 536 U.S. 194,
200, 153 L. Ed. 2d 242, 251, 122 S. Ct. 2105, 2110 (2002); People v.
Love, 199 Ill. 2d 269, 278 (2002). There has never been a
requirement that the police must be acting in a community caretaking
function to prevent the encounter from turning into a seizure. Indeed,
the Supreme Court has stated expressly that the police have the right
to approach citizens and ask potentially incriminating questions. See
Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 401, 111 S.
Ct. 2382, 2388 (1991) (AThe dissent reserves its strongest criticism
for the proposition that police officers can approach individuals as to
whom they have no reasonable suspicion and ask them potentially
incriminating questions. But this proposition is by no means novel; it
has been endorsed by the Court any number of times. Terry, Royer,
Rodriguez, and Delgado are just a few examples@); see also, e.g.,
United States v. Winston, 892 F.2d 112, 117 (D.C. Cir. 1989) (lawful

-15-
for police officer to approach the defendant and ask questions
regardless of whether the officer had a reasonable suspicion that the
defendant was involved in a crime); People v. Melton, 910 P.2d 672,
677 (Colo. 1996) (A[t]he subjective suspicions of the police do not
distinguish a consensual encounter from an investigatory stop. In
fact, in most cases regarding consensual encounters the police
approach individuals because they have suspicions about them@).

The Encounter Between Officer Pate and Defendant
Having properly set forth the three tiers of police-citizen
encounters, we next consider the nature of the encounter when
Officer Pate approached defendant=s vehicle. Defendant contends that
Officer Pate seized him for fourth amendment purposes before
observing the open bottle and signs of intoxication, while the State
maintains that the encounter remained a third-tier consensual
encounter prior to Officer Pate=s observations.
For purposes of the fourth amendment, an individual is Aseized@
when an officer A >by means of physical force or show of authority,
has in some way restrained the liberty of a citizen.= A Bostick, 501
U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386, quoting Terry v.
Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868,
1879 n.16 (1968). Initially, we note that the appellate court framed
the seizure standard incorrectly. Citing Mendenhall, the appellate
court stated that a Aseizure occurs when a reasonable person would
not feel free to leave under the circumstances.@ 357 Ill. App. 3d at
421. Although Afree to leave@ is the correct test for certain situations,
it was not applicable here. In Bostick, 501 U.S. at 435, 115 L. Ed. 2d
at 399, 111 S. Ct. at 2386, the Supreme Court explained that the Afree
to leave@ language makes sense when the person is walking down a
street or through an airport lobby. However, in situations in which the
person=s freedom of movement is restrained by some factor
independent of police conduct the Afree to leave@ test is inapplicable
and Athe appropriate inquiry is whether a reasonable person would
feel free to decline the officers= requests or otherwise terminate the
encounter.@ Bostick, 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct.
at 2387. In Bostick, the Supreme Court applied this test to persons
seated on a bus.

-16-
 The question of which test applies to a person seated in a parked
vehicle was settled by this court in Gherna. In that case, this court
applied Bostick rather than Mendenhall. See Gherna, 203 Ill. 2d at
178. Thus, the appropriate test is whether a reasonable person in
defendant=s position would have believed he was free to decline
Officer Pate=s requests or otherwise terminate the encounter.
Moreover, the test presupposes a reasonable innocent person. Bostick,
501 U.S. at 438, 115 L. Ed. 2d at 400, 111 S. Ct. at 2388. The
analysis requires an objective evaluation of the police conduct in
question and does not hinge upon the subjective perception of the
person involved. White, 221 Ill. 2d at 21-22. It is well settled that a
seizure does not occur simply because a law enforcement officer
approaches an individual and puts questions to that person if he or
she is willing to listen. Gherna, 203 Ill. 2d at 178; Drayton, 536 U.S.
at 200, 153 L. Ed. 2d at 251, 122 S. Ct. at 2110. In Bostick, the
Supreme Court explained that the police may do more than merely
ask questions without turning the encounter into a seizure:
AWe have stated that even when officers have no basis for
suspecting a particular individual, they may generally ask
questions of that individual [citations] ; ask to examine the
individual=s identification [citations]; and request consent to
search his or her luggage [citations]Bas long as the police do
not convey a message that compliance with their requests is
required.@ Bostick, 501 U.S. at 434-35, 115 L. Ed. 2d at 398-
99, 111 S. Ct. at 2386.
The central flaw in the appellate court=s opinion was its failure to
consider and discuss the large body of case law addressing whether
police approaches to parked vehicles amounted to seizures. The
appellate court freed itself from the moorings of precedent by
asserting that each of these cases is Asui generis in that no two factual
situations are identical@ and that, while precedent may provide some
insight, Acommon sense@ must be a court=s main guide. 357 Ill. App.
3d at 421. The court=s failure to consider the applicable case law
resulted in the court=s finding a seizure based on factors that courts
had not previously found to be coercive, and the necessary
consequence of the appellate court=s opinion would be to make a
seizure of every approach of a police officer to a parked vehicle at
night.

-17-
 Although it is true that the facts of no two cases are ever exactly
the same, that does not mean that a court is free simply to ignore an
entire body of relevant case law and the principles and guidelines
articulated therein. Nowhere in the appellate court majority opinion is
there even an acknowledgment of the general rule that the police may
approach and question a person seated in a parked vehicle without
that encounter being labeled a seizure. As Professor LaFave has
noted, Aif an officer merely walks up to a person standing or sitting in
a public place (or, indeed, who is seated in a vehicle located in a
public place) and puts a question to him, this alone does not
constitute a seizure.@ 4 W. LaFave, Search & Seizure '9.4(a), at 419-
21 (4th ed. 2004). The Aseated in a vehicle@ clause of the above
passage is supported by a lengthy list of citations to the many state
and federal decisions that have recognized this rule. See 4 W.
LaFave, Search & Seizure '9.4(a), at 419-20, 420 n.49 (collecting
cases). In Murray, this court held that the mere approaching and
questioning of a person seated in a parked vehicle does not constitute
a seizure and listed many decisions from other jurisdictions that had
reached the same conclusion. Murray, 137 Ill. 2d at 391-93. Thus,
any analysis of such a situation must begin with the recognition that
the police may approach a person seated in a parked vehicle and ask
questions of that person without that encounter being labeled a
seizure. 5 The encounter becomes a seizure only if the officer, through
5
This rule in and of itself defeats the trial court=s rationale for granting
the motion to suppress. In the trial court, defendant argued that Officer Pate
Ahad no right at that time to approach [defendant] and engage him in
conversation under the circumstances.@ The trial court adopted this position
in its written order, stating that Officer Pate had not observed conduct
sufficient to warrant the approach and questioning that took place. In later
explaining its ruling from the bench, the trial court stated, A[t]here was no
basis to approach.@

-18-
physical force or a show of authority, restrains the liberty of the
vehicle=s occupant. See Bostick, 501 U.S. at 434, 115 L. Ed. 2d at
398, 111 S. Ct. at 2386
In Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at
1877, the lead opinion listed four factors that may be indicative of a
seizure: (1) the threatening presence of several officers; (2) the
display of a weapon by an officer; (3) some physical touching of the
person of the citizen; and (4) the use of language or tone of voice
indicating that compliance with the officer=s request might be
compelled. This court adopted these factors in Murray. See Murray,
137 Ill. 2d at 390. The record clearly shows that none of these factors
were present here. The appellate court did not consider this relevant
because it concluded that A[w]hile the presence of such factors may
be highly indicative of the occurrence of a seizure, their absence says
virtually nothing.@ (Emphasis added.) 357 Ill. App. 3d at 423.
Immediately preceding this passage, however, the appellate court
cited those pages in Murray (137 Ill. 2d at 390-91) in which we find
the exact opposite rule. In Murray, this court listed the four
Mendenhall factors and then quoted Mendenhall for the proposition
that A >[i]n the absence of some such evidence, otherwise inoffensive
contact between a member of the public and the police cannot, as a
matter of law, amount to a seizure of that person.= @ (Emphasis
added.) Murray, 137 Ill. 2d at 390-91, quoting Mendenhall, 446 U.S.
at 555, 64 L. Ed. 2d at 509-10, 100 S. Ct. at 1877. After stating this
rule, this court reviewed each of the Mendenhall factors, found that
they were absent, and thus concluded that no seizure had occurred.
Murray, 137 Ill. 2d at 390-91; see also Smith, 214 Ill. 2d at 353-54
(relying on absence of Mendenhall factors to conclude that no seizure
had occurred). Indeed, Mendenhall itself used an analysis based on
the absence of Mendenhall factors. The lead opinion listed the four
factors, noted their absence, and then concluded that no seizure had
occurred. Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10,
100 S. Ct. at 1877. From the very minute the Mendenhall factors
were created, courts have used their absence to determine that
seizures had not occurred.
Even in the absence of cases such as Mendenhall, Murray, and
Smith, it would seem self-evident that the absence of Mendenhall
factors, while not necessarily conclusive, is highly instructive. If
those factors are absent, that means that only one or two officers

-19-
approached the defendant, they displayed no weapons, they did not
touch the defendant, and they did not use any language or tone of
voice indicating that compliance with their requests was compelled.
Obviously, a seizure is much less likely to be found when officers
approach a person in such an inoffensive manner.
The appellate court believed that, because Mendenhall stated that
courts should look to the totality of the circumstances in determining
whether a seizure had occurred, the court must conduct a Apractical,
realistic@ inquiry to determine if a reasonable person would have felt
free to leave and that the court should not focus on rigid, technical
rules such as the Mendenhall factors.6 357 Ill. App. 3d at 421-24. The
problem with this view is that, immediately after Mendenhall said
that a person is seized if Ain view of all of the circumstances
surrounding the incident, a reasonable person would have believed
that he was not free to leave@ (Mendenhall, 446 U.S. at 554, 64 L. Ed.
2d at 509, 100 S. Ct. at 1877), it elaborated on how courts are to
make that determination. The lead opinion listed several factors that
are generally indicative of a seizure, said that in the absence of some
such evidence otherwise inoffensive contact between a member of the
public and the police is not a seizure, and then concluded that no
seizure had occurred because those factors were not present.
Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10, 100 S. Ct. at
1877. This court expressly adopted those factors in Murray. The Ain
view of all the circumstances@ language must be read in concert with,
not in opposition to, the factors. See, e.g., Smith, 214 Ill. 2d at 352-
53. The factors illustrate what type of police conduct would give a
reasonable person an objective reason to believe that he or she was
not free to leave or was not free to decline an officer=s requests.
Moreover, we disagree with the appellate court=s characterization
of Mendenhall as requiring a Apractical, realistic inquiry@ of whether
a reasonable person in the defendant=s situation would feel free to

6
It is not entirely clear how the appellate court determined that Ain view
of all the circumstances@ is synonymous with Apractical, realistic inquiry.@
The Supreme Court=s requirement that courts consider all the circumstances
means simply that courts must assess the coercive effect of police conduct
taken as a whole. See Michigan v. Chesternut, 486 U.S. 567, 573, 100 L.
Ed. 2d 565, 572, 108 S. Ct. 1975, 1979 (1988).

-20-
leave. This is not a description that one often sees applied to the
Mendenhall standard. Indeed, the first person identified under the
Mendenhall standard as someone who would feel free to walk away
was a woman approached in an airport by federal agents who
identified themselves as such and asked to see her ticket and
identification. Justice Stewart=s opinion did not consider practically
and realistically whether people in airports feel free to walk away
from federal agents who ask to see their tickets and identification, but
rather looked objectively at the police conduct under recognized
factors to determine if they had curtailed the defendant=s liberty
through physical force or a show of authority. Moreover, the Court
focused on what, objectively, the police conduct would cause a
reasonable person to believe: A[N]othing in the record suggests that
the respondent had any objective reason to believe that she was not
free to end the conversation in the concourse and proceed on her way
***.@ Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at
1878. Professor LaFave has explained that the Mendenhall test is not
to be given a literal reading:
A[I]f [the free to walk away language] is taken to mean that a
pedestrian whose movements have been interrupted and who
is questioned is likely to feel free to depart without
responding, it is a highly questionable conclusion. As noted
in Illinois Migrant Council v. Pilliod: >Implicit in the
introduction of the [officer] and the initial questioning is a
show of authority to which the average person encountered
will feel obliged to stop and respond. Few will feel that they
can walk away or refuse to answer.= This, it is submitted, is an
accurate characterization of the great majority of situations in
which an officer approaches a pedestrian and seeks an
explanation for his activities or even identification. Thus, if
the ultimate issue is perceived as being whether the suspect
>would feel free to walk away,= then virtually all
police-citizen encounters must in fact be deemed to involve a
Fourth Amendment seizure. The Mendenhall-Royer standard
should not be given such a literal reading as to produce such a
result.@ 4 W. LaFave, Search & Seizure '9.4(a), at 423-24
(4th ed. 2004).
We thus do not agree with the appellate court=s conclusion that the
absence of Mendenhall factors Asays virtually nothing@ and that a

-21-
seizure is determined solely by a Apractical, realistic@ inquiry into
whether a reasonable person in defendant=s position would have felt
free to leave (or, as is appropriate here, whether a reasonable person
would have felt free to decline the officer=s requests or otherwise
terminate the encounter). Rather, the Supreme Court requires an
objective evaluation of police conduct, based upon recognized
standards, and an objective evaluation of what that conduct would
cause a reasonable person to believe. This makes perfect sense
because Aany test intended to determine what street encounters are
not seizures must be expressed in terms that can be understood and
applied by the officer.@ See 4 W. LaFave, Search & Seizure '9.4(a),
at 414 (4th ed. 2004).
Although it is not true that the absence of Mendenhall factors
Asays virtually nothing,@ it is true that those factors are not exhaustive
and that a seizure can be found on the basis of other coercive police
behavior that is similar to the Mendenhall factors. Courts have
developed additional rules applicable to police approaches of
occupants of parked vehicles. Professor LaFave has summarized
these cases as follows:
AAs noted earlier, the mere approach and questioning of
[persons seated within parked vehicles] does not constitute a
seizure. The result is not otherwise when the officer utilizes
some generally accepted means of gaining the attention of the
vehicle occupant or encouraging him to eliminate any barrier
to conversation. The officer may tap on the window and
perhaps even open the door if the occupant is asleep. A
request that the suspect open the door or roll down the
window would seem equally permissible, but the same would
not be true of an order that he do so. Likewise, the encounter
becomes a seizure if the officer orders the suspect to >freeze=
or to get out of the car.@ 4 W. LaFave, Search & Seizure
'9.4(a), at 433 (4th ed. 2004).
By contrast, factors that courts have found indicative of a seizure of a
parked vehicle are Aboxing the car in, approaching it on all sides by
many officers, pointing a gun at the suspect and ordering him to place
his hands on the steering wheel, or use of flashing lights as a show of
authority.@ 4 W. LaFave, Search & Seizure '9.4(a), at 434-35 (4th ed.
2004). Because the appellate court failed to discuss these factors, it is

-22-
unclear whether they were aware of them. We find it relevant that
Officer Pate=s encounter with defendant involved none of this
conduct.
The appellate court did identify three new factors that it believed
were indicative of a seizure, but we disagree with the court=s
conclusion that these factors are coercive. The first factor cited by the
appellate court was Officer Pate=s stopping of his vehicle in the
middle of the roadway. The appellate court concluded that, by doing
so, Officer Pate was demonstrating his authority as a police officer
because private citizens may not stop their cars in the middle of the
street and Ablock traffic.@ 7 357 Ill. App. 3d at 421. The court cited
section 11B1304 of the Illinois Vehicle Code (625 ILCS 5/11B1304
(West 2002)). The court further concluded that Officer Pate=s
stopping of his vehicle in this manner demonstrated a sense of
urgency. According to the appellate court, what Officer Pate should
have done instead would have been to pull up alongside defendant=s
vehicle and talk to him because that would have communicated
Anothing more than a casual encounter on the street.@ 357 Ill. App. 3d
at 422.
There are several problems with the appellate court=s analysis.
First, the court cited no authority for the proposition that a police
officer=s parking of his vehicle in a manner not allowed for private
citizens is inherently coercive. We find it more relevant that Officer
Pate did nothing to signal that compliance was expected, such as
turning on his overhead flashing lights as a show of authority. He did
not even pull his car in behind defendant=s vehicle until after he had
noticed signs of intoxication. Although the appellate court believed
that Officer Pate was demonstrating a sense of urgency and
displaying his authority as a police officer, another equally likely
explanation for Officer Pate=s behavior was that he did not expect to
be at the scene very long. This inference is supported by the fact that

7
Because Officer Pate was parked on a residential street, in a small town,
at 2:40 a.m., the appellate court=s concern that he was Ablocking traffic@ was
overstated.

-23-
Officer Pate pulled his vehicle in behind defendant=s vehicle after he
noticed signs of intoxication and radioed for assistance. Once it was
apparent that he would be at the scene for a while, he moved his car
out of the middle of the street. Second, even if the appellate court was
correct that a police officer commits a show of authority by parking
in a manner not allowed for private citizens, its proposed cure would
not have fixed the problem. If Officer Pate would have pulled up
alongside the defendant=s vehicle as the appellate court wanted him to
do, that also would have been an action that the law does not allow
private citizens to engage in. See 625 ILCS 5/11B1303(a)(1) (West
2004) (A[e]xcept when necessary to avoid conflict with other traffic,
or in compliance with law or the directions of a police officer or
official traffic-control device, no person shall: 1. Stop, stand or park a
vehicle: a. On the roadway side of any vehicle stopped or parked at
the edge or curb of a street@). Third, if Officer Pate would have pulled
alongside defendant=s vehicle, he would have been blocking
defendant in his parking space, and this is a factor often used by
courts to determine that a seizure of a person in a parked vehicle has
occurred. In Gherna, one of the factors that this court relied on in
determining that the defendant was seized was that two officers on
bicycles positioned themselves alongside the driver=s door and the
passenger=s door: Athe positioning of the officers and their bicycles
prevented defendant from either exiting the vehicle or driving the
vehicle away from the scene.@ Gherna, 203 Ill. 2d at 180; see also
United States v. Kerr, 817 F.2d 1384 (9th Cir. 1987) (finding seizure
where police blocked car in a one-lane driveway); People v. Beverly,
364 Ill. App. 3d 361, 370 (2006) (finding seizure where police officer
parked perpendicularly behind defendant=s vehicle, blocking it in its
parking spot); Commonwealth v. King, 389 Mass. 233, 241, 449
N.E.2d 1217, 1223 (1983) (officer committed seizure when he
positioned his cruiser in such a way as to block defendant=s vehicle in
its parking space); State v. Roberts, 293 Mont. 476, 483, 977 P.2d
974, 979 (1999) (seizure where officer parked his car in such a way
as to block defendant in his driveway); Commonwealth v. Greber,
478 Pa. 63, 67, 385 A.2d 1313, 1316 (1978) (seizure where officer
parked his squad car in front of a parked car in such a way as to block
it in a parking lot); cf. United States v. Encarnacion-Galvez, 964 F.2d
402, 410 (5th Cir. 1992) (border patrol agents approached two
persons in a parked vehicle and asked for identification; court found

-24-
no seizure, in part because the Aagents did not park their vehicle in
such a way that would block Encarnacion-Galvez=s path if he chose
to drive or walk away@). We noted earlier the importance in seizure
analysis of setting forth guidelines that can be understood and applied
by the officer. It is surely not reasonable, after the courts have for
years found that blocking cars in their parking spots is coercive, to
hold that Officer Pate seized defendant because he failed to block
defendant in his parking space. See Chesternut, 486 U.S. at 574, 100
L. Ed. 2d at 572, 108 S. Ct. at 1979-80 (noting that seizure standard
Acalls for consistent application from one police encounter to the
next@ so that the police may Adetermine in advance whether the
conduct contemplated will implicate the Fourth Amendment@). In
sum, we find nothing inherently coercive in the way Officer Pate
parked his vehicle.

The second factor relied upon by the appellate court was that
Officer Pate shined a flashlight on defendant=s car as he approached.
According to the appellate court, shining a flashlight is intrusive and
is analogous to the Mendenhall factor of using language or tone of
voice indicating that compliance is compelled. 8 357 Ill. App. 3d at
422. Once again, precedent leads to the opposite result. It is well
settled that the use of a flashlight to illuminate a vehicle located on a
public way is not a fourth amendment search. Texas v. Brown, 460
U.S. 730, 739-40, 75 L. Ed. 2d 502, 512, 103 S. Ct. 1535, 1542
(1983) (AIt is likewise beyond dispute that Maples= action in shining
his flashlight to illuminate the interior of Brown=s car trenched upon
no right secured to the latter by the Fourth Amendment@); see also 1
W. LaFave, Search & Seizure '2.2(b), at 461-62 (4th ed. 2004)
(explaining rule and stating that Athe reason typically given is that the
owner or operator of an automobile parked or being operated on a
public thoroughfare does not have a justified expectation that such a
common device as a flashlight would not be used during the
nighttime to see what would be visible without such illumination
during daylight hours@). Whether the use of a flashlight constitutes a
fourth amendment seizure depends on whether the officer engaged in

8
This is the only one of the three factors that the appellate court
analogized to one of the Mendenhall factors.

-25-
other coercive behavior. In People v. Holdman, 73 Ill. 2d 213, 220
(1978), this court held that shining a light on a vehicle was not a
Astop@ when there was no coercion or threat of coercion. See also
People v. Erby, 213 Ill. App. 3d 657, 662 (1991) (shining a light on a
parked vehicle not a stop absent coercion or threat of coercion). By
contrast, in People v. Bunch, 207 Ill. 2d 7, 19 (2003), this court found
that the defendant was seized when, after a police officer ordered him
to exit a vehicle in which he had been a passenger, the officer had
him stand next to the handcuffed and arrested driver, stood one foot
away from him, shined a flashlight in his face, and said, AWhat=s your
name? Where you coming from?@ Courts in other jurisdictions have
also generally found that the use of a flashlight or a spotlight, without
other coercive behavior, is insufficient to transform a consensual
encounter into a seizure. See, e.g., State v. Stuart, 168 Ariz. 83, 86,
811 P.2d 335, 338 (App. 1990) (shining spotlight on vehicle not a
seizure); People v. Perez, 211 Cal. App. 3d 1492, 1496, 260 Cal.
Rptr. 172, 174 (1989) (shining high beams and spotlights on vehicle
not a detention; A[w]hile the use of high beams and spotlights might
cause a reasonable person to feel himself the object of official
scrutiny, such directed scrutiny does not amount to a detention@);
People v. Cascio, 932 P.2d 1381, 1388 (Colo. 1997) (officers= use of
flashlights and a spotlight was a practical necessity because it was
getting dark; no seizure because lights were not used in an
intimidating manner); State v. Baker, 141 Idaho 163, 167, 107 P.3d
1214, 1218 (2004) (using spotlight to illuminate the defendant=s car
was not a seizure); Campbell v. State, 841 N.E.2d 624, 630 (Ind. App.
2006) (shining of spotlight on defendant, who was standing next to a
parked car, not a seizure); Commonwealth v. Eckert, 431 Mass. 591,
595, 728 N.E.2d 312, 316 (2000) (Aby walking up to the defendant=s
parked vehicle at the rest area, shining his flashlight inside and asking
whether the defendant was >all set,= Trooper Shugrue did not engage
in any conduct that requires constitutional justification@); State v.
Clayton, 309 Mont. 215, 221, 45 P.3d 30, 35 (2002) (shining of
spotlight on defendant=s vehicle not a seizure); State v. Justesen, 2002
UT App 165, &15, 47 P.3d 936, 939 (officer=s use of take-down lights
served to illuminate the area and was not a show of authority); State
v. Young, 135 Wash. 2d 498, 513-14, 957 P.2d 681, 688-89 (1998)
(use of spotlight not a seizure). When the use of a light is
accompanied by coercive behavior, such as blocking a car in its

-26-
parking space, the courts will be more likely to find a seizure. See,
e.g., United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994)
(seizure found when officers= vehicles were in front of and behind
defendant=s vehicle and had their take-down lights shining, and one
officer approached with a flashlight shining and asked the vehicle=s
occupants to put their hands in the air); Commonwealth v.
Mulholland, 2002 PA Super. 59, &11, 794 A.2d 398, 401-02 (seizure
found when police officer shined a spotlight on the defendant=s
vehicle and parked his cruiser in such a way that the defendant could
not exit the parking lot).
Here, Officer Pate=s use of the flashlight was not accompanied by
other coercive behavior. As we noted above, he parked his car past
defendant=s vehicle so as not to block it in its space and did not
activate his overhead flashing lights. He merely shined his flashlight
on the car as he walked toward it. We view this behavior not as
coercive, but as merely incident to a police officer=s performance of
his job after dark. In Baker, the Idaho Supreme Court noted that a
police officer=s use of a light at night allows him to gain more
information about the situation he is confronting, which can
significantly enhance officer safety. Baker, 141 Idaho at 167, 107
P.3d at 1218. If we adopted the appellate court=s view that the use of
a flashlight is inherently coercive and analogous to a tone of voice
indicating that compliance is compelled, that would make a seizure of
any nighttime encounter in which an officer uses a flashlight or
spotlight. This would leave the officer with a dilemma that we are not
prepared to require: A >an officer is not constitutionally required to
choose between a consensual encounter in the dark or turning on a
spotlight and thereby effectuating a detention that may not be
supported by reasonable suspicion.= @ Baker, 141 Idaho at 167, 107
P.3d at 1218.
The final allegedly coercive factor cited by the appellate court
was that Officer Pate approached defendant=s vehicle from the rear
driver=s side, instead of merely walking straight up to the window Aas
an ordinary citizen typically would.@ 357 Ill. App. 3d at 421.
According to the appellate court, Officer Pate=s angle of approach
conveyed the following message to defendant: A >I am interested in
you and I will speak to you right now.= @ 357 Ill. App. 3d at 421. The
appellate court majority agreed with the dissenting justice=s assertion
that officers approach vehicles from the rear out of a concern for their

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own safety. The appellate court concluded, however, that officer
safety does not Aimmunize from constitutional scrutiny all actions
taken in its name,@ and that Officer Pate=s angle of approach showed
that he was treating defendant as a dangerous subject. 357 Ill. App.
3d at 422-23.
As with the other two factors, the appellate court failed to cite any
authority in support of its position. Defense counsel conceded at oral
argument that he could cite no authority, other than the appellate
court=s 2-1 decision, for the proposition that a police officer
effectuates a seizure by approaching a vehicle from the rear instead of
from the side. We see nothing inherently coercive in Officer Pate=s
angle of approach, and we agree with the dissenting justice=s
observation that a private citizen=s angle of approach to a vehicle
would depend upon where he began his approach. In its amicus brief,
the Fraternal Order of Police confirms that law enforcement officers
are trained to approach automobiles from the rear driver=s side
because this method of approach provides the officer with the most
protection. We disagree with the appellate court=s conclusion that a
police officer acts in a coercive manner simply because he
approaches in a manner designed to enhance his own safety.
Moreover, it is not true that Officer Pate=s approach necessarily
meant that he viewed defendant as a dangerous suspect. It seems
obvious that officers are trained to approach all vehicles in this
manner because they have no way of knowing when they will
encounter a dangerous person. As with its position on the use of a
flashlight, the appellate court would leave a police officer with a bad
choice. Either he must stroll up to the side of the vehicle with no
concern for his own safety, or he must approach from the rear driver=s
side and risk effectuating a detention that is not supported by a
sufficient reasonable, articulable suspicion of criminal activity.
Assuming that the police will always take their own safety into
account, the appellate court=s position would mean that every
approach of a police officer to a vehicle will constitute a seizure. This
is exactly the kind of result that Justice Stewart warned against in
Mendenhall:
AMoreover, characterizing every street encounter between
a citizen and the police as a >seizure,= while not enhancing any
interest secured by the Fourth Amendment, would impose
wholly unrealistic restrictions upon a wide variety of

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 legitimate law enforcement practices. The Court has on other
occasions referred to the acknowledged need for police
questioning as a tool in the effective enforcement of the
criminal laws.@ Mendenhall, 466 U.S. at 554, 64 L. Ed. 2d at
509, 100 S. Ct. at 1877.
In sum, it is clear that Officer Pate did not effectuate a seizure of
defendant before observing an open bottle and signs of defendant=s
intoxication. Rather, precedent shows that Officer Pate acted exactly
as a well-trained police officer should when he wishes to question a
person seated in a parked vehicle without effectuating a seizure. He
drove past defendant=s vehicle so as not to block it in its space. He
did not turn on his overhead flashing lights to signal that defendant=s
compliance was expected. He did not use coercive language or a
coercive tone of voice, he did not touch defendant, and he did not
display his weapon. He approached from the rear driver=s side, as he
was trained to do, and he used a flashlight because it was nighttime.
Objectively viewed, nothing Officer Pate did would communicate to
a reasonable person, innocent of any wrongdoing, that he was not free
to decline to answer Officer Pate=s questions or otherwise go about
his business. We reject the position of the appellate court that if an
officer patrolling in the middle of the night sees something about a
vehicle that appears out of the ordinary, he must walk casually up to
the side window in the dark, with no concern for his own safety and
no illumination, or be held to have committed a seizure. The
touchstone of the fourth amendment is reasonableness (United States
v. Knights, 534 U.S. 112, 118, 151 L. Ed. 2d 497, 505, 122 S. Ct. 587,
591 (2001)), and the consequences that would follow from the
appellate court=s opinion are not reasonable.

CONCLUSION
Because no seizure occurred until after Officer Pate had a
reasonable, articulable suspicion that defendant was intoxicated while
in control of a motor vehicle, the circuit court erred in granting the
motion to suppress. We therefore reverse the judgments of the
appellate court and the circuit court and remand the cause to the
circuit court for further proceedings.

Appellate court judgment reversed;

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 circuit court judgment reversed;
cause remanded.

JUSTICE BURKE took no part in the consideration or decision of
this case.

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