specially concurring:
I agree with Justice Wright that the trial court’s order denying defendant’s motion to suppress should be affirmed. I write separately because, under the facts presented, I analyze this case as a lawful, consent-based search, not as a second seizure requiring constitutional consideration.
Courts have divided police-citizen encounters into three tiers: (1) arrests, which require probable cause; (2) “Terry stops,” which must be supported by reasonable, articulable suspicion of criminal activity; and (3) consensual encounters which do not involve coercion or detention and do not implicate the fourth amendment. Luedemann, 222 Ill. 2d 530. Until our supreme court states otherwise, we are still obligated to initially assess the consensual nature of a police-citizen encounter. Justice Wright’s analysis disregards that tier.
Sergeant Blanks returned to defendant’s vehicle, handed him his documents and issued a written warning. At that point, the traffic stop drew to its conclusion and a second police-citizen encounter was initiated. Blanks immediately and lawfully asked defendant if he was transporting anything illegal. See Luedemann, 222 Ill. 2d at 552 (even when officers have no basis for suspicion of criminal activity, they may generally ask questions of an individual). He then requested and received consent to search defendant’s vehicle. Defendant has not asserted that his consent to search was involuntary. There was no delay of a few minutes, no threat or command, and no brandishing of a weapon. From the record, it does not appear that Sergeant Blanks restrained defendant through physical force or exhibited his authority in an intimidating manner. He immediately asked defendant for consent to search the vehicle, and defendant voluntarily gave it.
Justice Wright notes the lack of physical force or show of authority, yet concludes that a second seizure occurred because the officer’s questions “required defendant to reply,” and defendant did not feel “free to depart” following the conclusion of the lawful stop.
However, in Brownlee, our supreme court noted that “an officer is always free to request permission to search.” Brownlee, 186 Ill. 2d at 515. The issue in Brownlee was not that the officers requested permission to search the vehicle after the conclusion of a lawful traffic stop, but that the two officers, one at the driver’s side window and one at the passenger’s side window, detained the car and its occupants for a few minutes without moving from their positions before requesting permission to search the vehicle. Brownlee, 186 Ill. 2d at 514. Those facts are not present here.
Moreover, the “feel free to leave” test is no longer the correct standard in cases involving independent restraint by a vehicle. The Illinois Supreme Court recently redefined the Mendenhall test in People v. Luedemann, 222 Ill. 2d 530 (2006). In that case, the court stated:
“Although ‘free to leave’ is the correct test for certain situations, it was not applicable here. In Bostick, [Florida v. Bostick, 501 U.S. 429, 435, 115 L. Ed. 2d 389, 399, Ill. S. Ct. 2382, 2386 (1991)] the Supreme Court explained that the ‘free 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 ‘free to leave’ test is inapplicable and ‘the 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, Ill. S. Ct. at 2387.” Luedemann, 222 Ill. 2d at 550.
In Luedemann, the defendant was approached by officers while seated in a parked car that was still running.
Here, defendant was seated in his car at the conclusion of a valid traffic stop. The appropriate analysis is whether a reasonable person in defendant’s position would have believed he was free to decline Sergeant Blanks’ requests or otherwise terminate the encounter. This test presupposes a reasonable, innocent person. Luedemann, 222 Ill. 2d at 551; see also Bostick, 501 U.S. at 438, 115 L. Ed. 2d at 400, Ill. S. Ct. at 2388. The test requires “an objective evaluation of the police conduct in question and does not hinge upon the subjective perception of the person involved.” Luedemann, 222 Ill. 2d at 551. The encounter becomes a seizure if the officer restrains the liberty of the vehicle’s occupant through physical force or a show of authority. See Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, Ill. S. Ct. at 2386.
Our supreme court’s decision in Luedemann mandates an objective review of the officer’s conduct to determine if a second seizure occurred. Applying the facts in this case to the required analysis, I would conclude that the encounter that ensued at the conclusion of the lawful traffic stop was consensual and thus did not invoke fourth amendment concerns.