dissenting.
[¶ 24] I respectfully dissent.
[¶ 25] Because the police officer seized Richter without reasonable suspicion, I would overturn the hearing officer’s decision. As the majority opinion notes at ¶ 10, “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Koskela, 329 N.W.2d at 589 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870). See also City of Devils Lake v. Grove, 2008 ND 155, ¶ 9, 755 N.W.2d 485; State v. Guscette, 2004 ND 71, ¶ 8, 678 N.W.2d 126; State v. Fields, 2003 ND 81, ¶ 11, 662 N.W.2d 242. Under the totality of the circumstances present in this case, a reasonable person in Richter’s position would not have believed he was free to leave, and a seizure occurred for the purposes of the Fourth Amendment.
*725[¶ 26] The police officer testified he parked the patrol vehicle “a distance away” from Richter’s vehicle “off the passenger front bumper,” and it was possible for Richter to drive away. The officer stated his vehicle’s headlights and “take-down lights” were illuminated when he parked. He testified “take-down lights” are “the white clear lights, non-flashing lights, that are located on a light bar, on an emergency light white bar, and they’re simply a ... bright lights that shine in from a higher elevation into a ... into a motor vehicle.” As he approached Richter’s vehicle, the officer testified he was “carrying my flashlight, shining that around inside the vehicle.” The passenger testified it was clear a police cruiser entered the parking lot, and a police officer was approaching Richter’s vehicle. Upon arriving at the passenger side door, the officer stated he “motioned for the female in the passenger seat to roll it down.... ”
[¶ 27] Where a police officer drives into a parking lot, activates “take-down lights” on the cruiser’s emergency light bar, parks the patrol vehicle at an angle so as to shine its lights into the sole vehicle in the lot, approaches that vehicle while shining a flashlight throughout the passenger compartment, and then gestures for the passenger to roll down the window, a reasonable person would have believed that he was not free to leave rather than comply with the officer’s request. Therefore, a seizure occurred for the purposes of the Fourth Amendment, and the hearing officer erred by concluding “[t]here was no stop in this case until after Officer Poppe smelled the odor of alcoholic beverage coming from inside the pickup.”
[¶ 28] However, rather than consider the totality of the circumstances, the majority focuses upon whether a seizure occurred simply when the officer gestured for Richter’s passenger to roll down the window. The majority, at ¶ 17, states: “[W]e conclude the hearing officer’s determination the police officer did not stop Richter when he gestured to the passenger to roll down the window is supported by the record.” Had the evidence only dealt with the police officer gesturing for the passenger to roll down the window, the hearing officer’s finding would have been correct. However, the evidence established the officer’s gesture was the last of a series of actions that, when viewed together, constitute a seizure under the Fourth Amendment because a reasonable person would have believed he was not free to leave.
[¶ 29] In concluding the officer did not seize Richter when he made the gesture, the majority overrules Wibben, 413 N.W.2d 329 (N.D.1987), “to the extent that Wibben holds a Fourth Amendment stop or seizure occurs whenever a law enforcement officer taps on a window of a parked motor vehicle....” Majority opinion, at ¶ 15. The majority also adopts the rationale of Justice VandeWalle’s concurrence in Wibben. Id. I agree with the majority’s decision to overrule Wibben and adopt the reasoning of the concurrence. However, I dissent because the majority fails to faithfully apply the full reasoning of the concurrence, which states an encounter between a private citizen and a police officer “becomes a seizure if the officer engages in conduct which a reasonable man would view as threatening or offensive if performed by another private citizen.” Wib-ben, at 335 (VandeWalle, J., concurring in result) (citing 3 W. LaFave, Search and Seizure, § 9.2(h) (1987)). The concurrence also provides:
[P]olice action which one would not expect if the encounter was between two private citizens — boxing the car in, approaching it on all sides by many officers, or use of flashing lights as a show *726of authority — will likely convert the event into a Fourth Amendment seizure.
Id. Thus, the Wibben concurrence recognizes a police officer’s actions beyond requesting a vehicle occupant to roll down the window may cause an encounter to become a seizure under the Fourth Amendment. If the police officer acts in a manner a reasonable person would view as threatening, offensive, or which a person would not expect if the encounter was between private citizens, a seizure occurs under the Fourth Amendment. See id.
[¶ 30] A reasonable person would not expect another private citizen to act like the police officer did in this case. A private citizen sitting in the sole vehicle in a parking lot does not expect another private citizen to drive into the lot, activate “take-down lights,” park his vehicle at an angle so as to shine its lights into the sole other vehicle in the parking lot, approach that vehicle while shining a flashlight throughout the passenger compartment, and gesture for the passenger to roll down the window. In fact, a reasonable person would likely find this behavior threatening. Considering the totality of the circumstances, and the extent to which the police officer’s behavior deviated from that expected of a private citizen, the majority errs by affirming the hearing officer’s finding that no seizure took place until after the police officer smelled alcohol emanating from inside Richter’s vehicle.
[¶ 31] The two cases cited by the majority to support affirming the hearing officer’s finding are factually distinguishable. As the majority opinion states at ¶ 13:
In Abernathey, 2009 ND 122, ¶ 2, 768 N.W.2d 485, a police officer received a call that people were being disruptive at a bar after hours. The officer drove to the bar, which was supposed to be closed, and saw a pickup parked in the parking lot. Id. The officer approached the pickup without activating his red lights and parked his squad car so as not to block the path of the pickup. Id. Approaching the pickup, the officer notices its doors were locked and asked the occupant in the driver’s seat, Aber-nathey, to unlock the doors. Id. Aber-nathey provided a slurred response. Id. When the officer heard the response, he again asked Abemathey to “please” unlock the doors and to exit the vehicle. Id. at ¶¶ 2,13.
In Abemathey, the police officer did not activate the patrol car’s “take-down lights” and park at an angle so as to shine the lights directly into Abernathey’s vehicle. The police officer also did not shine a flashlight into the passenger compartment upon approaching Abernathey’s vehicle. The police officer in Abemathey approached the occupants in the vehicle conversationally. These factual distinctions make Abemathey inapposite to this case. A reasonable person in Abernathey’s position would have felt he was free to leave, because the police officer approached him in a non-threatening manner. Contrastingly, a reasonable person in Richter’s position would have felt the target of a police investigation and unable to leave on his own accord, because the officer acted in a more authoritative manner.
[¶ 32] The second case cited by the majority is even less pertinent. As the majority explains at ¶ 14:
In Jerome, 2002 ND 34, ¶ 2, 639 N.W.2d 478, a police dispatcher received an anonymous tip that Jerome was driving while intoxicated and relayed the information to Officer Shahin, who observed and followed Jerome’s vehicle but did not attempt to stop the vehicle. Id. After Jerome parked her vehicle in her driveway and exited from it, Shahin asked in “a conversational and nonthreatening manner” if he could speak to *727her. Id. at ¶¶2, 7. Jerome answered affirmatively, and she was subsequently arrested for driving under the influence. Id. at ¶ 2.
Perhaps had the police officer parked his patrol vehicle at an angle, shined his “take-down lights” at Jerome, exited the vehicle, and approached Jerome while shining a flashlight at her, the case would be applicable. But without such factors, Jerome offers little precedential value for this case.
[¶ 33] Additionally, as the police officer in this case smelled alcohol emanating from Richter’s vehicle after the seizure had already occurred, no reasonable suspicion supports the officer’s actions. At the time the seizure occurred, the officer simply knew a vehicle with two occupants was parked behind a closed business around 1:30 a.m., the business had been burglarized in the past, and the vehicle was running. These facts are not enough to support a finding of reasonable suspicion. See City of Minot v. Johnson, 1999 ND 241, ¶ 10, 603 N.W.2d 485 (“We have also required more than an officer’s awareness of past burglaries in an area to find a reasonable and articulable suspicion the defendant was, or was about to be, engaged in unlawful activity.”); State v. Robertsdahl, 512 N.W.2d 427, 428 (N.D.1994) (“[The deputy sheriffs] unfamiliarity with the vehicle, his knowledge of past burglaries in the county, and the vehicle’s location in the vicinity of [a liquor store] after hours amount to no more than a Vague hunch’ of illegal activity.”); State v. Sarhegyi 492 N.W.2d 284, 286 (N.D.1992) (“The only bases for [the police officer’s] suspicions were the time of night, the burglary possibilities, the safety of the occupant, if the car was stolen, if someone needed assistance, and the fact that Sarhegyi began to pull away from [the officer] as he entered the lot. All these justifications are ... legally insufficient bases for reasonable suspicion when examined in light of existing case law.”).
[¶ 34] Therefore, because the officer seized Richter without reasonable suspicion, I would reverse the hearing officer’s decision.
[¶ 35] CAROL RONNING KAPSNER