(concurring):
¶ 12 I write separately to indicate that although I agree with the dissent concerning the relevance of the Utah Supreme Court's recent decision in State v. Alveres, 2006 UT 61, I believe the facts of this ease are distinguishable for reasons not addressed in the main opinion. I do not believe the Alverez court intended to create a per se rule that accusatory questioning will always create a level two encounter. Rather, the supreme court held that "(under the cireumstances in [Alveres ], where two uniformed police officers waited for and then approached [dlefen-dant and accused him of not one, but two illegal acts-lack of car insurance and drug trafficking-a reasonable person would not have felt free to leave." Id. at ¶ 11. Considering both the nature of the questioning in this case and the totality of the cireum-stances, I agree with the main opinion that Defendant reasonably would have believed he was free to leave. '
¶ 13 Although both Alverez and this case involve police questioning of an accusatory pature, the factual settings are different enough to justify disparate conclusions as to the level of the encounter. In Alverezs, two uniformed and armed police officers concealed themselves behind a van parked next to Alverez's car. See id. at ¶ 4. They then surprised and confronted Alverez about his vehicle being uninsured and their belief that he was dealing drugs, eventually wrestling with him and causing him to spit out balloons of cocaine and heroin. See id. at TV 4-6. The Utah Supreme Court did not rely only on the accusatory nature of the questions posed to Alverez. Instead, it noted that *780these questions "originated from a pair of uniformed police officers who waited for and then surprised Defendant alone in a residential parking lot." Id. at ¶ 12. Furthermore, to leave the seene, Alverez would have had to walk past the officers and enter the vehicle he admitted was uninsured.
¶ 14 Here, Defendant was neither alone nor surprised. There were five suspects and two police officers. Only one of those officers engaged in the encounter with Defendant. The officer asked permission to speak with Defendant when he was still approximately three houses away. Defendant voluntarily agreed to the encounter and walked to the officer to facilitate the discussion. Rather than being outnumbered in a residential parking lot and needing to proceed past the officers to leave the seene by car, Defendant could simply have turned around and walked back to the house from which he had emerged. Under the totality of the cireum-stances, I concur with the main opinion that this case involves a level one encounter and that, therefore, the decision of the trial court should be affirmed.