dissenting:
I respectfully dissent from the majority’s finding today that the defendant’s fourth amendment rights were violated by the action of the police officers in the present case in requesting to see a motorist’s driver’s license and in asking him to step from his vehicle where he had been slumped over in a parked car, next to a busy expressway, in the early morning hours. I disagree with this finding for two essential reasons: (1) there was no “stop” of the motorist here which would require a justification for the officers’ action and (2) there never was a seizure of the motorist until one of the officers observed a gun on the floor of the auto, which was in plain view when the defendant exited the auto. For the majority to hold, contrary to the trial court’s finding on the motion to suppress, that the officers’ conduct violated the defendant’s fourth amendment rights to be free from illegal searches and seizure, sends a most confusing message to police officers in general and improperly taints the conduct of the two police officers in the present case, who acted in a very sound and responsible manner.
I believe that this case is very similar to the recent case decided by this court in People v. Hicks (1989), 183 Ill. App. 3d 636, 539 N.E.2d 756, which was concurred in by the two judges in the majority today. In Hicks, we found the activities of the officers there to be merely a consensual interaction with the defendant and not a stop requiring specific articulable facts of reasonable suspicion of criminal activity as set forth in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.1 In Hicks, the officers observed the defendant exit from an airplane at O'Hare Airport and followed him for a short distance before one officer spoke to the defendant, while the other officer stood nearby and observed the conversation. (Hicks, 183 Ill. App. 3d 636, 539 N.E.2d 756.) The officer who spoke to the defendant identified himself as a police officer, then asked the defendant for some identification and a copy of his airline ticket. (Hicks, 183 Ill. App. 3d at 639, 539 N.E.2d at 758.) This same panel of judges sitting today found that that activity of the officers there did not require a finding of reasonable suspicion since they agreed that there was no stop, and, thus, no seizure of the defendant. Accordingly, we held in Hicks that the encounter was consensual and did not require any additional constitutional justification. (Hicks, 183 Ill. App. 3d at 644, 539 N.E.2d at 761.) In that case, we relied upon the reasoning of the United States Supreme Court in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, which has also been adopted in Illinois as the test for when a seizure of a person takes place. (See People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616.) In Mendenhall, the Supreme Court noted:
“ ‘There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets,’ [citation]. Police officers enjoy ‘the liberty (again, possessed by every citizen) to address questions to other persons [citation] * * * f
** *
We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ [Citation.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
Moreover, 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 legitimate law enforcement practices.
* * *
[The] *** conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that [he or] she was free to decline to cooperate with their inquiry, for the voluntariness of [the] responses does not depend upon [his or] her having been so informed. [Citation.] We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to [his or] her self-interest is that [he or] she was compelled to answer the agents’ questions. It may happen that a person makes statements to law enforcement officials that [they] later regret[ ], but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.” Mendenhall, 446 U.S. at 553-56, 64 L. Ed. 2d at 508-10, 100 S. Ct. at 1876-78.
Further, as the Mendenhall court also noted, whether a defendant’s consent to the encounter and interaction is voluntary or was the product of duress or coercion, expressed or implied, is to be determined by the totality of all the circumstances. (Mendenhall, 446 U.S. at 557, 64 L. Ed. 2d at 511, 100 S. Ct. at 1879.) Here, the trial court found that the police officers had acted reasonably and did not violate the defendant’s right to be free from unlawful searches and seizures. As the majority notes, the decision of the trial court on a motion to suppress will be reversed only when it is against the manifest weight of the evidence. (See People v. Watson (1986), 145 Ill. App. 3d 492, 495 N.E.2d 1153.) The finding of the trial court here clearly was not against the manifest weight of the evidence.
In the present case, Officers Flaherty and Brown observed the defendant, who appeared to be asleep, slumped over behind the steering wheel of an automobile parked on the frontage road adjacent to the Calumet Expressway near 104th and Doty Road at 10 a.m. The officers proceeded to investigate the situation. Officer Flaherty approached defendant’s vehicle and knocked on the window, awaking the defendant. Officer Flaherty asked the defendant for his driver’s license and either asked him to exit the car or the defendant, himself, voluntarily stepped out of the auto. Officer Brown was standing to the side of the door and at the front of the windshield at this time. As the defendant exited the auto, Officer Brown looked into the car and observed a handgun on the floor of the car and alerted his partner. Officer Brown then arrested the defendant and Officer Flaherty seized the weapon.
As this same panel said in Hicks, in what I believe to be a very similar type of situation, “under the Mendenhall test, there was no seizure.” (Hicks, 183 Ill. App. 3d at 643, 539 N.E.2d at 761.) Consequently, since there was no seizure of the defendant there, but only a consensual encounter, there was, of course, no need to justify the officers’ activity on the grounds of reasonable suspicion, as any inquiry of reasonable suspicion was rendered irrelevant by the consensual nature of the encounter. Similarly here, the initial encounter between Officers Flaherty and Brown and the defendant was merely a consensual type of encounter until Officer Brown saw the handgun in the defendant’s automobile. Thus, the actions of the police officers here also did not violate the defendant’s constitutional rights.2 Contrary to the majority’s view, I also find the present case to be factually similar to People v. Ledwa (1980), 81 Ill. App. 3d 276, 401 N.E.2d 298. There the police officers found two young men asleep in an automobile parked along a roadside in a park, and, while investigating, the officers found LSD and marijuana paraphernalia in the car. (Ledwa, 81 Ill. App. 3d at 277, 401 N.E.2d at 300.) The court ruled that the officers there had acted properly in conducting an investigation and that the evidence obtained was properly admissible at the subsequent trial. The court stated:
“Defendants argue that the cannabis found in the trunk [discovered as a consequence of the drug paraphernalia in plain view] is inadmissible ***. We cannot agree. The police officers did not first approach the automobile as law enforcement officers; they approached as public safety officers. They investigated two young men slumped down in an automobile parked along the roadside. The officers had a duty to investigate to determine whether the young men were injured or ill. They then discovered contraband in plain view. We fail to see any difference between this and a traffic stop.” Ledwa, 81 Ill. App. 3d at 278-79, 401 N.E.2d at 301.
Additionally, because I do not believe that the officers unlawfully stopped or seized the defendant here, the arrest of the defendant for possession of the weapon and the subsequent charging of the defendant with unlawful use of a weapon by a felon was also proper. Moreover, the evidence introduced at the trial of the defendant, which included the officers’ testimony and the evidence of the constructive possession of the gun on the floor of the automobile, six inches from the driver’s seat, established, I believe, the defendant’s guilt beyond a reasonable doubt.
Accordingly, I would affirm the judgment of the circuit court of Cook County.
sOf course, if the activity did not need to be justified by specific articulable facts of criminal activity under Terry, it also did not need to be justified by facts warranting a finding of probable cause to arrest. Therefore, I do not consider this issue in my dissent other than collaterally and where appropriate.
The majority distinguishes the United States v. Mendenhall and People v. Hicks cases by finding the situation here different from those cases because, as the majority states, the police engaged in a show of authority when they “demanded” that the motorist produce his driver’s license and “commanded” him to exit his vehicle. The majority asserts that the defendant was seized at that point, and that his freedom of movement was restrained. However, the only factual difference between the actions of the officers here and the officers in Mendenhall and Hicks is that at the time of the encounter the officers here were in uniform and they asked to see the defendant’s license (there is no evidence that the officers “demanded” the motorist’s license) and they requested that he exit his vehicle (again, there is no evidence that the police officers “commanded” him to exit his vehicle and, in fact, there is some evidence that the defendant voluntarily exited his vehicle). However, I have difficulty in seeing any
legal significance in these differences, since the officers in Mendenhall and Hicks identified themselves as police officers, asked the defendant for identification, and ultimately requested him to follow them to a more remote area to search his luggage. How the actions in those cases merely constituted a consensual encounter, while in the present case the actions resulted in a constitutionally prohibited seizure and restraint of the defendant’s freedom of movement eludes me. The actions of the officers here and in those cases seems to me to be very similar and without any legal difference.
Also, the specific legal holding of the majority that a request for a motorist to produce a driver’s license and that the driver exit his vehicle constitutes, ipso facto, a seizure within the meaning of the law, resulting in a restraint of freedom, is a new and novel rule of law. To my knowledge, no court has so held and those courts which have considered similar issues have in fact found to the contrary.