¶ 94. (<dissenting). Although I disagree with the majority opinion in several respects I write to focus on its unfortunate, perhaps even needless, adherence to the test for a seizure under the now-infamous case of California v. Hodari D., 499 U.S. 621 (1991).1 As a consequence of this test, the right that Wisconsin citizens once possessed to go about their business and "walk away" from police during the course of a casual encounter may no longer exist.
¶ 95. In applying Hodari D., the majority:
(I) embraces a case that has been widely criticized and oft rejected for good reason;
(II) ignores the test for a seizure as stated in the recent United States Supreme Court decision of Kaupp v. Texas, 538 U.S. 626 (2003); and
(III) assumes that this court previously adopted Hodari D. even though that is less than clear.
*49¶ 96. I would decline to apply Hodari D. Instead, I would continue to follow the test the Court set forth in United States v. Mendenhall, 446 U.S. 544 (1980), and recently reaffirmed in Kaupp in order to determine whether a citizen has been seized.
¶ 97. Under this test the existence of a seizure does not depend on whether the citizen submitted to a police show of authority, absent physical force. Rather, a citizen is seized when, taking into account all of the circumstances involved in an encounter with police, a reasonable person would not feel free to leave. Kaupp, 538 U.S. at 629; Mendenhall, 446 U.S. at 554. In the case of a temporary seizure (a Terry stop), as is implicated here, when police do not possess reasonable suspicion to justify such a seizure, citizens have the right to go about their business and walk away. Florida v. Royer, 460 U.S. 491, 498 (1983).2
¶ 98. Ultimately, I am convinced that the distinctions the majority draws between what constitutes the legitimate exercise of the right to walk away and what constitutes illegitimate flight will often amount to a line drawn in the sand on a windy day. For all of these reasons, I respectfully dissent.
rH
¶ 99. Commentators and courts alike have criticized Hodari D. Many courts have rejected it. This is for good reason.
*50¶ 100. Professor LaFave, in his leading treatise on the láw of search and seizure, devotes approximately 13 pages to the matter, impressively synthesizing a large body of Fourth Amendment case law. Wayne R. LaFave, 4 Search and Seizure § 9.4(d), at 453-66 (4th ed. 2004).
¶ 101. Numerous other commentators have approached Hodari D. with similar skepticism. Juan F. Alanis, To Seize or not to Seize ..., 23 Am. J. Crim. L. 461, 474-478 (1996); Ronald J. Bacigal, The Right of the People to Be Secure, 82 Ky. L.J. 145, 146, 179-188 (1993); Thomas K. Clancy, The Future of Fourth Amendment Seizure Analysis after Hodari D. and Bo-stick, 28 Am. Crim. L. Rev. 799, 841-842 (1991); Patrick T. Costello, California v. Hodari D.: The Demise of the Reasonable Person Test in Fourth Amendment Analysis, 12 N. Ill. U. L. Rev. 463, 483-84 (1992); Michelle R. Ghetti, Seizure Through the Looking Glass: Constitutional Analyses in Alice's Wonderland, 22 S.U. L. Rev. 231, 243 (1995); Randolph Alexander Piedrahita, A Conservative Court says "Goodbye to All That" and Forges a New Order in the Law of Seizure — California v. Hodari D., 52 La. L. Rev. 1321,1333 (1992); Victor R. Quiros, The Impact of California v. Hodari D. Upon Police Pursuits in California: The Fruit of the Poisonous Tree is No Longer Poisonous, 19 W. St. U. L. Rev. 641, 661-62 (1992); Alyssa Saks, Can Attempted Seizures be Unreasonable?: Applying the Law of Attempt to the Fourth Amendment, 37 Cal. W. L. Rev. 427, 429-430, 438 (2001); Richard W. Zahn, California v. Hodari D.: An Evolving Definition of Seizure Under the Fourth Amendment, 27 New Eng. L. Rev. 447, 466 (1992); Defining a Seizure — Police Chases and Bus Sweeps: Florida v. Bostick and California v. Hodari D., 105 Harv. L. Rev. 297, 298-299 (1991).
*51¶ 102. I highlight some of the most compelling criticisms as summarized by Professor LaFave.3
¶ 103. Criticism 1. Contrary to the Hodari D. hypothesis, pursuit constitutes an immediate infringement on the suspect's freedom of movement. This is because the person being pursued reasonably knows that the object of the chase is capture; that the police purpose is to restrain his liberty; that if he stopped running, he would not be free to leave; and that in effecting the capture police will resort to physical force if necessary. 4 Search and Seizure § 9.4(d), at 459-60.
¶ 104. Criticism 2. Under Hodari D., the timing of a seizure is governed not by the officer's conduct but by the citizen's reaction, a result inconsistent with other established Fourth Amendment jurisprudence. The Court in Michigan v. Chesternut, 486 U.S. 567, 574 (1988), for example, emphasized the necessity of a standard that "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment."
¶ 105. Criticism 3. When applying Hodari D., courts will frequently be confronted with difficult questions concerning precisely when the requisite physical force or submission to authority commenced. 4 Search and Seizure § 9.4(d), at 462. As Justice Stevens put it in his dissent to Hodari D.: "The range of possible responses to a police show of force, and the multitude of problems that may arise in determining whether, and at which moment, there has been 'submission,' can only create uncertainty and generate litigation." Hodari D., 499 U.S. at 644 (Stevens, J., dissenting).
*52¶ 106. Some cases may involve rather obvious flight. However, it may be difficult for courts in future cases to distinguish between what constitutes the legitimate exercise of the right to walk away and what constitutes illegitimate flight.
¶ 107. Criticism 4. Under Hodari D., it will be advantageous to police officers to place the seizure at the latest possible moment so as to be able to use any earlier-revealed evidence as part of the basis for a Terry stop. 4 Search and Seizure § 9.4(d), at 462. Such an approach diminishes the established constitutional protections against unreasonable seizures.
¶ 108. No fewer than 11 other courts of last resort have rejected Hodari D. State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992); Jones v. State, 745 A.2d 856, 863-68 (Del. 1999); State v. Quino, 840 P.2d 358, 362 (Haw. 1992); Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999); Commonwealth v. Stoute, 665 N.E.2d 93, 97-98 (Mass. 1996); Matter of E.D.J., 502 N.W2d 779, 780-83 (Minn. 1993); State v. Clayton, 45 P.3d 30, 34 (Mont. 2002); State v. Tucker, 642 A.2d 401, 405 (N.J. 1994); Commonwealth v. Matos, 672 A.2d 769, 771-76 (Fa. 1996); State v. Randolph, 74 S.W.3d 330, 331-37 (Tenn. 2002); State v. Young, 957 E2d 681, 687 (Wash. 1998); see also People v. Holmes, 619 N.E.2d 396, 397-98 (N.Y. 1993) (without citing Hodari D., holding that police pursuit of an individual significantly impedes the person's freedom of movement and thus must be justified by reasonable suspicion).
¶ 109. The widespread criticism and rejection of Hodari D. is well founded. Hodari D. states that, absent physical force, a seizure does not occur unless the citizen under investigation yields to the police show of authority. Hodari D., 499 U.S. at 626. This statement is *53difficult to reconcile with the Court's other established Fourth Amendment jurisprudence.
¶ 110. For example, I cannot reconcile Hodari D.'s statement with Terry, which held:
[C]ourts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.
Terry v. Ohio, 392 U.S. 1, 15 (1968).
¶ 111. Similarly, I cannot reconcile Hodari D.'s statement with Chesternut. In Chesternut, the Court held: "[The test for a seizure] calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police." Chesternut, 486 U.S. at 574 (emphasis added).
¶ 112. Moreover, the Court's decision in Menden-hall strongly suggests that its test contemplated that suspects may often attempt to flee or otherwise evade police but that this did not forestall the seizure. In Mendenhall, the Court gave "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave." Mendenhall, 446 U.S. at 554 (emphasis added). The Court's use of "even where" evinces its assumption that in the course of a typical seizure the suspect often would attempt to leave.
¶ 113. The examples the Court gave of what might "indicate a seizure" include "the threatening presence of several officers, the display of a weapon by *54an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. These examples of what might "indicate a seizure" further suggest that the test for a seizure does not encompass a citizen's response to the police officers' conduct.
¶ 114. Yet, in Hodari D., the Court did not say it was overruling any of this previous jurisprudence. On the contrary, it purported to rely on at least some of it. Hodari D., 499 U.S. at 627-28.
¶ 115. I am persuaded by the commentators and courts that have, rightly criticized and rejected Hodari D.
¶ 116. So was the court of appeals. In the case before us, it expressed serious reservations about the problems with Hodari D. "[W]e are less than enthusiastic," the court flatly stated, "about the result that Hodari D. mandates in this case." State v. Young, 2004 WI App 227, ¶ 19, 277 Wis. 2d 715, 690 N.W.2d 866. The court then explained its concern that Hodari D. may eviscerate the right to walk away:
[A]fter Hodari D., [Young's] supposed right to "go on his way" becomes an empty right because it vests police with the authority to pursue and detain anew. In short, the person is penalized for legal conduct while police are rewarded for illegal conduct.
Id., ¶ 20.
¶ 117. The court of appeals was correct. The right to go about one's business and "walk away" cannot coexist with a rule that, absent physical force, no seizure may attach before a citizen submits to the police show of authority.
*55¶ 118. Even the majority feels it necessary to "recognize the strength" of some of the criticisms described. Majority op., ¶ 47. Unfortunately, the majority embraces Hodari D. anyway.
II ¶ 119. Adding to my concern with the majority's embrace of Hodari D. is that the United States Supreme Court's recent decision in Kaupp leaves uncertain the present status of Hodari D.
¶ 120. In Kaupp, the Court unequivocally reaffirmed what I always understood to be the Mendenhall test:
A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when ... the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.
Kaupp, 538 U.S. at 629 (emphasis added; internal quotations omitted).
¶ 121. In Kaupp the Court did not say that a seizure "may occur when" or "can occur when" or "occurs 'only' when." In other words, the Court in Kaupp was clear that "when" police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business, that is a sufficient condition to effect a seizure.4
*56¶ 122. Unlike the straightforward reading of Mendenhall that the Court in Kaupp reaffirmed, the Court in Hodari D. sliced and diced and nuanced the text of Mendenhall. See Hodari D., 499 U.S. at 628 ("[Mendenhall] says that a person has been seized 'only if [a reasonable person would have believed that he was not free to leave], not that he has been seized 'whenever'; it states a necessary, but not a sufficient, condition for seizure — or, more precisely, for seizure effected through a 'show of authority.'") (emphasis in original).5
¶ 123. Thus, the interpretative gloss the Court placed on Mendenhall in Hodari D. does not square with its subsequent reaffirmation of the Mendenhall test in Kaupp.
*57¶ 124. The majority does not account for the test in Kaupp. Unlike the majority, I would give credence to the most recent pronouncement of the Court. Following Kaupp, I would ask "when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Kaupp, 538 U.S. at 629 (internal quotations omitted).6
HH H-i >-H
¶ 125. What is additionally unfortunate about the majority's embrace of Hodari D. today is that it may have been needless. The majority assumes that "[i]n State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis. 2d 422, 626 N.W.2d 777, this court adopted the Hodari D. test for 'when a seizure occurs'" Majority op., ¶ 4; see also majority op., ¶¶ 26, 51. It is less than clear, however, whether this court adopted Hodari D. in Kelsey C.R. In order to see why, I begin by delving deeper into Kelsey C.R.
¶ 126. The language in Kelsey C.R. "adopting" Hodari D. comes from the "majority" opinion of three justices. Two justices concurred. Kelsey C.R., 243 Wis. 2d 422, ¶¶ 52, 72. Two justices dissented. Id., ¶¶ 73, 98.
¶ 127. The defendant in Kelsey C.R. was a juvenile girl, who police officers suspected might be a runaway. Id., ¶¶ 4-5. They found her sitting in the *58middle of a block in a high-crime neighborhood in Milwaukee. Id., ¶ 4. From their car, the officers asked her some questions, remained concerned based on her answers, and told her to "stay put" so they could make a U-turn to be on the same side of the street as Kelsey to ask her more questions. Id., ¶ 5. At that point, she fled. Id.
¶ 128. After a 30- to 40-second chase, the officers caught Kelsey. They contacted her mother, who asked that they bring Kelsey home. Id., ¶ 6. Before the officers placed her in their car, they conducted a pat-down search and found a loaded handgun. Id:, ¶ 7 7
¶ 129. The three-justice opinion in Kelsey C.R. stated three issues:
One, did the police officers seize Kelsey, thereby invoking her constitutional protection against unreasonable seizures, when [one of the officers] told her to "stay put" but she ran away? Two, was the investigative detention after she fled based on a reasonable suspicion that she had committed, was committing, or was about to commit, a crime? Three, was the pat-down search of Kelsey based on a reasonable suspicion that she may be armed and dangerous?
Id., ¶ 11.
¶ 130. In addressing the first issue, three justices clearly applied Hodari D. to determine that there was no seizure of Kelsey until the officers applied physical force by catching her after a chase. Id., ¶ 33. Those justices did not, however, stop with Hodari D. They also addressed the first issue using a community caretaker analysis, concluding that "if this initial exchange was a *59seizure, then it was reasonable under the police community caretaker function." Id., ¶ 37. They then addressed the second issue, another Terry stop question, and the third issue, which involved the pat-down. Id., ¶¶ 38, 47.
¶ 131. Without mention of Hodari D., the concurring opinion in Kelsey C.R. stated that it agreed with "the majority's two-part analysis of the stop in this case." Id., ¶ 52 (Sykes, J., concurring). It is less than clear what the concurrence was referencing because there were two asserted "stops" in the case, and the "majority" concluded that only the second was a seizure. Like the concurrence, the dissent made no mention of Hodari D.
¶ 132. The lack of clarity as to whether a majority of justices took a position on Hodari D. in Kelsey C.R. is underscored by an examination of the court of appeals' decisions that have subsequently interpreted Kelsey C.R.
¶ 133. In State v. Hart, 2001 WI App 283, 249 Wis. 2d 329, 639 N.W.2d 213,8 the court of appeals interpreted Kelsey C.R. as follows: "Apparently, all of the justices agreed that the officers did not seize Kelsey by telling her to 'stay put.'" Hart, 249 Wis. 2d 329, ¶ 16 (emphasis added). In a footnote, the court of appeals elaborated:
The plurality relied on California v. Hodari D., 499 U.S. 621, 626 (1991), to hold that in order to effect a seizure, an officer must make a show of authority, and the citizen must actually yield to that show of authority. State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis. 2d 422, *60626 N.W.2d 777. Because Kelsey did not yield to the officer when he told her to "stay put," no seizure occurred until the officers caught her after she fled. Id. Neither the concurring or dissenting opinions disagreed with this portion of the plurality's decision.
Hart, 249 Wis. 2d 329, ¶ 16 n.6 (emphasis added). Thus, the court of appeals concluded that all of the justices "[apparently" agreed that Hodari D. applied because a "plurality" relied on Hodari D. and because neither the concurring nor dissenting opinions expressly "disagreed" that it applied.
¶ 134. In a later case, State v. Powers, 2004 WI App 143, 275 Wis. 2d 456, 685 N.W.2d 869, the court of appeals was not so equivocal. There, it interpreted Kelsey C.R. differently. It unequivocally stated that in Kelsey C.R. "the supreme court held, 'In order to effect a seizure, an officer must make a show of authority, and the citizen must actually yield to that show of authority.' " Powers, 275 Wis. 2d 456, ¶ 8 (quoting Kelsey C.R., 243 Wis. 2d 422, ¶ 33).
¶ 135. Then, in State v. Washington, 2005 WI App 123, 284 Wis. 2d 456, 700 N.W.2d 305, the court of appeals seemed to give Kelsey C.R. yet a third interpretation, again taking a slightly different view of the case. It first said that "[o]ur supreme court has indicated that it 'will follow the Hodari D. standard for when a seizure occurs.'" Washington, 284 Wis. 2d 456, ¶ 13 n.4. However, it qualified: "While Kelsey C.R. wás a case concerning ... the community caretaker function, this court [the court of appeals] has also employed the Hodari D. standard in a Terry stop case." Id., ¶ 13 n.4. The case to which the court of appeals was referring was its decision in the case now before us.
¶ 136. Whether more them three justices in Kelsey C.R. adopted Hodari D. is less than clear from the *61Kelsey C.R. decision. The court of appeals has interpreted Kelsey C.R. at least three times, each time in a slightly different way. For me, this underscores the lack of clarity as to whether a majority of this court even adopted Hodari D. in Kelsey C.R. Yet today, the majority simply assumes that Hodari D. is settled law in Wisconsin. It laments the strength of the criticisms of Hodari D., while professing to be bridled by its own recent precedent. See majority op., ¶¶ 43, 51.
IV
¶ 137. For the reasons stated, I would decline to apply Hodari D. Instead, I would continue to follow the test the Court set forth in Mendenhall and recently reaffirmed in Kaupp in order to determine the moment that a citizen is seized. Under that test the existence of a seizure does not depend on whether the citizen submitted to a police show of authority. I therefore respectfully dissent.
¶ 138. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.1 disagree with the majority that the investigating officer had reasonable suspicion for a stop of the parked car in which Young was sitting. See majority op., ¶¶ 5, 58-64. Police do not possess reasonable suspicion simply because individuals remain in a parked vehicle at night for approximately 10 minutes in a "problem area." It adds nothing to the reasonable suspicion analysis here that the vehicle was also "unfamiliar" to the investigating officer and had Illinois license plates. The stop took place in Kenosha, a populous area that borders Illinois. The court of appeals was right to "harbor doubt" as to whether the officer had reasonable suspicion to stop the parked car. State v. Young, 2004 WI App 227, ¶ 10 n.4, 277 Wis. 2d 715, 690 N.W.2d 866.
This court and the court of appeals have followed this test in cases after California v. Hodari D., 499 U.S. 621 (1991). See, e.g., State v. Williams, 2002 WI 94, ¶¶ 20-23, 255 Wis. 2d 1, 646 N.W.2d 834; State v. Jones, 2005 WI App 26, ¶¶ 9-21, 278 Wis. 2d 774, 693 N.W.2d 104, review denied, 2005 WI 134, 282 Wis. 2d 720, 700 N.W.2d 272.
As the majority states, many of the criticisms of Hodari D. amplify the points made by the dissent in Hodari D. See majority op., ¶ 43.
The full text of the relevant portion of Kaupp v. Texas, 538 U.S. 626 (2003), reads as follows:
A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, "taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not *56at' liberty to ignore the police presence and go about his business.'11 Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). This test is derived from Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544 (1980), see California v. Hodari D., 499 U.S. 621, 627-628 (1991), which gave several "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave," including "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, supra, at 554.
Kaupp, 538 U.S. at 629-30.
In Kaupp, the Court also recounted how in United States v. Mendenhall, 446 U.S. 544 (1980), it "gave several [ejxamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, including the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Kaupp, 538 U.S. at 630 (emphasis added; internal quotations omitted).
The majority states that I "ignore[] the fact that a court does not reach the Hodari D. test until a defendant refuses to submit to a police show of authority." Majority op., ¶ 40 n.13. This "fact" is nothing but the majority's own attempt to explain how the test for a seizure as stated in Hodari D. can somehow be squared with the test as stated in other United States Supreme Court cases, including Kaupp.
The male officers waited 20 minutes for a female officer to arrive and conduct the pat-down. State v. Kelsey C.R., 2001 WI 54, ¶ 7, 243 Wis. 2d 422, 626 N.W.2d 777.
This court overruled State v. Hart, 2001 WI App 283, 249 Wis. 2d 329, 639 N.W2d 213, in part on other grounds in State v. Sykes, 2005 WI 48, ¶ 33, 279 Wis. 2d 742, 695 N.W.2d 277.