dissenting.
As is often the situation in search and seizure cases, the divergent viewpoints of the majority and dissenting opinions in this case are fact dependent. I view the facts and the reasonable inferences that flow from them differently than the majority. Unlike the majority, I do not believe that Tercek “converted” a “police-citizen” conversation into a stop by a “show of authority.” The only show of authority was the reasonable request that defendant step out from behind a bush where he was partially concealed and move the few feet to where Tercek stood. Because of the lack of lighting, the hedges and a nighttime environment, Tercek told defendant that he could not see very well and asked him to move out of partial concealment. Defendant readily agreed and complied by moving the short distance to where Tercek stood and continued the conversation that ultimately led to the voluntary search. I do not read the facts as creating an atmosphere of coercion. The request by Tercek was objectively reasonable and was intended to facilitate a brief conversation with defendant in safety. Unlike the majority, I do not leap to the unwarranted conclusion that these facts constituted a stop. I, therefore, would reach the opposite result from the majority and would find that the search was voluntary and untainted.
I dissent.