concurring in part and dissenting in part:
In these consolidated cases, defendants were initially stopped by law enforcement officers for minor traffic law infractions. At certain points during their encounters with the officers, however, defendants were asked to consent to having their vehicles searched for contraband, and, in the case of defendant Cosby, to additionally agree to a search of his person. In both cases, the majority holds that the defendants were not seized by law enforcement officers at the time they were requested to consent to a search and, therefore, the provisions of the fourth amendment were not implicated. I strongly disagree with the majority that Cosby was not seized at the time he was asked to allow a consent search, as no reasonable person in his position would have felt free to terminate the encounter. It is my view that in Cosby’s case, the majority’s holding eviscerates the protections afforded to citizens under the fourth amendment by diluting the test used to such an extent that it no longer has meaning. In addition, I am seriously concerned that the majority— rather than providing needed guidance for our bench and bar with respect to this important area of the law — has created additional confusion by failing to harmonize our own precedent. Instead, the majority sends mixed messages, leaving our lower court judges and practitioners with the unenviable task of discerning the proper rules to apply. It is for this reason that although I join the majority’s ultimate holding that defendant Mendoza was not seized at the time he was asked for consent, I cannot agree with the method of analysis employed to arrive at that conclusion.
I. BACKGROUND
I begin my separate opinion with a short recitation of key background facts gleaned from the record in People v. Cosby, No. 100681. I am compelled to do so because several pivotal facts are absent from the opinion of the majority.
Cosby filed a motion to suppress evidence and, at the suppression hearing, both the prosecutor and defense counsel stipulated to the admission of the police report written by Plainfield police officer Steven Kaus. Although counsel at the hearing described this report as being two pages in length, the majority correctly observes that it is not contained in the record on appeal. However, the transcript of proceedings at the suppression hearing sheds light on the content of this report through the arguments made by both parties on the motion. Defense counsel noted that the report indicated that Officer Kaus stopped defendant for having a burned-out rear registration light. Defendant produced a speeding ticket in lieu of a license, as well as an insurance card. Kaus returned to his squad car, found that defendant’s license and insurance were valid, confirmed there were no outstanding warrants for defendant’s arrest, and radioed for a backup unit to come to the scene. Defense counsel stated that “[i]n his report [Kaus] indicates that he did that [called for backup] for a possible consent search.” When the second officer arrived at the scene of the stop, Kaus returned to defendant his ticket and insurance card and gave defendant a written warning citation. Defense counsel noted that “now [defendant] has two police vehicles there.” Kaus then asked for and received consent to search defendant’s car and discovered what he believed to be drug paraphernalia.
The prosecutor did not quarrel with defense counsel’s recitation of the facts as set forth in the police report. The prosecutor did further stipulate, however, that “the report will indicate to the court the officer asked for consent and got the consent almost immediately as he is handing the citation to the defendant.” The trial court subsequently denied defendant’s motion to suppress; no rationale, however, was provided for this ruling. The report of proceedings in the trial court on September 16, 2002, reveals that the entirety of the trial court’s statement with respect to its ruling on defendant’s suppression motion consists of the following single sentence: “Show cause coming on on [sic] the Court’s decision as to the motion to suppress, show motion to suppress is denied.”
Defendant’s case proceeded to trial, where Officer Kaus provided testimony that offered additional details about his encounter with defendant. Kaus testified that he was on patrol around 1:30 a.m. and was alone in a marked squad car when he observed defendant driving with a burned-out rear registration light. He stopped defendant on the shoulder of a two-lane road, which had little or no traffic, as well as poor lighting conditions with no overhead lights. Kaus stated that during the entire time of the stop, his squad car not only had its overhead flashing blue and red lights activated, but he also had his spotlight turned on and directed at defendant’s car. He approached the vehicle and asked defendant for his driver’s license and proof of insurance. Defendant complied. Kaus returned to his squad car and radioed for a backup officer to come to the scene because Kaus thought there would be a possible consent search. It was Kaus’ custom to stay in his vehicle until the backup officer arrived. It took approximately two minutes for him to check defendant’s identification and insurance and to call for backup, and he waited approximately an extra five minutes for his backup to arrive. The second officer — Officer Klima — pulled his squad car behind Kaus’ car. It was only after Klima arrived at the scene that Kaus then exited his vehicle and reapproached defendant’s car. Kaus handed defendant’s documents back to him and asked defendant for consent to search his vehicle. Defendant agreed, and Kaus directed him to exit his car and stand at the rear passenger side of the vehicle. Prior to conducting the search of the car, however, Officer Kaus further asked defendant if he would also consent to a search of his person. Defendant agreed and removed the contents of his pockets, including a pack of cigarettes. The officer examined defendant’s effects and, finding nothing suspicious, returned them to him.
Kaus testified that he then proceeded to conduct a search of defendant’s vehicle. According to Kaus, defendant remained near the rear passenger side of the car in the company of Officer Klima while Kaus searched the vehicle. Kaus found what he believed to be a crack pipe in the car’s middle console. Defendant was placed under arrest for possession of drug paraphernalia and transported to the police station. There, Cosby again emptied his pockets — including the cigarettes — and placed them in a tray. At the time Cosby was to post bond and leave the station, Kaus completed an evidence report of Cosby’s personal items and found four rocks of crack cocaine in the cigarette pack. Defendant was then charged with unlawful possession of a controlled substance, an offense of which he was subsequently found guilty by a jury.
The appellate court, in an order unpublished under our Rule 23, reversed the judgment of the trial court and vacated defendant’s conviction. The court held, inter alia, that pursuant to this court’s decision in People v. Gonzalez, 204 Ill. 2d 220 (2003), Kaus’ questioning of defendant with respect to the consent searches unreasonably prolonged the duration of the stop and resulted in defendant’s being illegally detained at the time he provided consent to the search. In turn, the court held that the consent, the resulting search and the subsequent arrest were tainted, and the fruits should have been suppressed.
II. ANALYSIS
The facts presented in these consolidated cases give rise to two threshold questions of law: whether defendants were seized within the meaning of the fourth amendment when they were requested to consent to searches by the officers, and, if so, whether that detention was unlawful. It is my view that in the case of defendant Cosby, the answer is yes. However, because the majority opinion fails to set forth the proper analytical framework to be employed in answering these questions, I am compelled to do so prior to discussing the application of these principles to the facts presented.
A. Principles of Analysis
It is well settled that in reviewing a trial court’s ruling on a motion to suppress evidence, we apply the two-part standard of review set forth by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Accordingly, a trial court’s findings of historical fact should be reviewed only for clear error, and a reviewing court must give due weight to any inferences drawn from those facts by the fact finder. Luedemann, 222 Ill. 2d at 542. In other words, great deference is afforded to the factual findings made by the trial court, and, accordingly, they will be reversed only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). A reviewing court, however, remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding the proper relief to be granted. Luedemann, 222 Ill. 2d at 542. Therefore, the trial court’s ultimate legal ruling as to whether suppression is warranted is reviewed de novo. Luedemann, 222 Ill. 2d at 542-43.
As stated, in the matter at bar, although the trial court denied Cosby’s suppression motion, it failed to make any specific factual findings or credibility determinations in support of this legal holding. Instead, the trial court simply stated that defendant’s “motion to suppress is denied.”1 We have previously cautioned that
“for [the Ornelas two-part] standard of review to function as it is intended, trial courts must exercise their responsibility to make factual findings when ruling on motions to suppress. Reviewing courts should not be required to surmise what factual findings that the trial court made. Instead, the trial court should make clear any factual findings upon which it is relying. It is only through this synergy between the trial and reviewing courts that appellate courts can develop a uniform body of precedent to guide law enforcement officers in their determination of whether their actions may violate the constitution.” In re G.O., 191 Ill. 2d 37, 50 (2000).
Here, it is apparent that the trial court did not heed our admonishment in G.O. with respect to setting forth the factual findings supporting its decision on defendant’s motion to suppress. It is therefore unclear upon what factual basis the trial court made the legal determination that defendant’s suppression motion should be denied. I note that in upholding the trial court’s judgment, the majority relies upon certain aspects of the factual record — facts not specifically set forth by the trial court in its ruling on the suppression motion — to conclude that Cosby was not seized at the time Officer Kaus asked him to consent to a search. I am in disagreement with this conclusion based upon my view that the record fairly and reasonably leads to the contrary legal conclusion that Cosby was unlawfully seized at the moment Kaus requested that defendant allow a consent search.
It is well settled that a person is seized by the police and entitled to challenge the actions of the officers under the protections of the fourth amendment when the officer, “ ‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16 (1968). Because a police officer may make a seizure solely by a show of authority and without the use of physical force, “there needs to be some test for telling when a seizure occurs in response to authority, and when it does not.” Brendlin v. California, 551 U.S. 249, 255, 168 L. Ed. 2d 132, 138, 127 S. Ct. 2400, 2405 (2007). The United States Supreme Court recently reaffirmed in Brendlin that this test has its roots in Justice Stewart’s principal opinion in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1879 (1980), wherein he wrote that “a seizure occurs if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Brendlin, 551 U.S. at 255, 168 L. Ed. 2d at 138, 127 S. Ct. at 2405, quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Brendlin noted that subsequent to Mendenhall, “the Court adopted Justice Stewart’s touchstone [citations] but added that when a person ‘has no desire to leave’ for reasons unrelated to the police presence, the ‘coercive effect of the encounter’ can be measured better by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” Brendlin, 551 U.S. at 255, 168 L. Ed. 2d at 138, 127 S. Ct. at 2405-06, quoting Bostick, 501 U.S. at 435-36, 115 L. Ed. 2d at 399, 111 S. Ct. at 2387; see also People v. Luedemann, 222 Ill. 2d 530, 548 (2006).
As stated, in conducting this inquiry, the United States Supreme Court has reaffirmed that a court must consider “ ‘all of the circumstances surrounding the incident’ ” (Brendlin, 551 U.S. at 255, 168 L. Ed. 2d at 138, 127 S. Ct. at 2405, quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877), meaning that the court “must assess the coercive effect of police conduct taken as a whole.” Luedemann, 222 Ill. 2d at 555 n.6, citing Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct. 1975, 1979 (1988). The Mendenhall Court set forth examples of circumstances that may indicate a seizure, 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, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877 (principal op.). We have recently held, however, that the factors set forth in Mendenhall “are not exhaustive and that a seizure can be found on the basis of other coercive police behavior that is similar to the Mendenhall factors.” Luedemann, 222 Ill. 2d at 557; see also People v. Bunch, 207 Ill. 2d 7, 20 (2003) (absence of the Mendenhall factors are not conclusive, as an officer’s show of authority may be manifested in other ways). Our opinion in Luedemann adopted several examples set forth by Professor LaFave in his fourth amendment treatise — in addition to those listed in Mendenhall — that may be indicative of a seizure of an individual who is approached by officers while seated in a parked vehicle: “ ‘boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority.’ ” Luedemann, 222 Ill. 2d at 557, quoting 4 W LaFave, Search & Seizure §9.4(a), at 434-45 (4th ed. 2004).2 The analysis of whether an individual is seized for purposes of the fourth amendment requires an objective evaluation of the police conduct in question and does not turn upon the subjective perception of the person involved. Luedemann, 222 Ill. 2d at 551.
It is well settled that a traffic stop entails a seizure within the meaning of the fourth amendment “ ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ ” Brendlin, 551 U.S. at 255, 168 L. Ed. 2d at 138, 127 S. Ct. at 2406, quoting Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396 (1979); see also Bunch, 207 Ill. 2d at 13. Vehicle stops are subject to the fourth amendment’s requirement of reasonableness, which is analyzed under Terry principles. Bunch, 207 Ill. 2d at 13-14; Gonzalez, 204 Ill. 2d at 228. This involves a dual inquiry: “whether the officer’s action was justified at its inception,” and “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879. As we recently held in People v. Harris, 228 Ill. 2d 222, 244 (2008), the scope prong of Terry examines the duration of the detention, and requires that it not be “unreasonably prolonged.”3 See also Brendlin, 551 U.S. at 255, 168 L. Ed. 2d at 138, 127 S. Ct. at 2406. It is also well settled that a seizure that is lawful at its inception can nevertheless violate the fourth amendment “if the manner of execution unreasonably infringes interests protected by the constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 160 L. Ed. 2d 842, 846, 125 S. Ct. 834, 837 (2005). For example, “[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837.
In the matters at bar, no issue exists concerning the lawfulness of the initial stops of the vehicles. Rather, these appeals concern the constitutional propriety of the conduct of the officers following the initial stops. Where an officer asks a motorist questions about contraband or consent to search the vehicle after a valid detention, the inquiry is whether the consent to search was valid, which, in turn, rests upon whether the consent was voluntary. Ohio v. Robinette, 519 U.S. 33, 40, 136 L. Ed. 2d 347, 354, 117 S. Ct. 417, 421 (1996). “ ‘[Voluntariness is a question of fact to be determined, from all of the circumstances.’ ” Robinette, 519 U.S. at 40, 136 L. Ed. 2d at 354, 117 S. Ct. at 421, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059 (1973). This inquiry, therefore, dovetails with the question of whether the motorist was seized at the time the officer asked the questions and whether that seizure was reasonable. A consent obtained during an illegal detention is ordinarily ineffective to justify an otherwise invalid search: “statements given during a period of illegal detention are inadmissible, even though voluntarily given, if they are the product of the illegal detention and not the result of an independent act of free will.” Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 228, 238-39, 103 S. Ct. 1319, 1326 (1983) (plurality op.); see also Bostick, 501 U.S. at 433-34, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386 (if consent was given during the course of an unlawful seizure, the results of the search must be suppressed as tainted fruit).
B. Application to the Cases at Bar
In its opinion, the majority’s analysis as to both Cosby and Mendoza centers exclusively upon the four Mendenhall factors. The court holds that none of the four factors are present in either of defendants’ cases and summarily concludes that defendants were not seized at the time they were asked for consent to submit to a search. However, as I have just noted, not only has the United States Supreme Court in Brendlin reaffirmed that a court must assess “all of the circumstances surrounding the incident” to determine whether an individual is seized, but this court has also recently and unanimously held in Luedemann that the Mendenhall factors are not exhaustive in determining whether a defendant is seized for purposes of the fourth amendment. It is only in response to the concerns raised in this separate opinion that the majority acknowledges that Luedemann held that the Mendenhall factors are not exhaustive and that a seizure can be found on the basis of other coercive police behavior that is similar to the Mendenhall factors. 231 Ill. 2d at 281. Nevertheless, the majority states that the “additional factors” noted in Luedemann “only apply to situations where police approach a parked vehicle” and that “[t]he fact that Cosby’s car was parked on the side of the road after Kaus effected a traffic stop does not make the additional factors applicable.” 231 Ill. 2d at 280. I disagree. Luedemann determined that the analytical framework for assessing whether an individual is “seized” within the meaning of the fourth amendment differs depending upon whether that person is walking down the street as a pedestrian or whether his “freedom of movement is restrained by some factor independent of police conduct.” Luedemann, 222 Ill. 2d at 550. In the former instance, the correct test is to determine whether, in view of all the circumstances, a reasonable person would feel “free to leave.” Luedemann, 222 Ill. 2d at 550. However, in the latter instance — i.e., where a person’s movement is restrained by a factor independent of police conduct such as here, where a person encounters a law enforcement officer while the person is seated in a car — the “free to leave” test is inappropriate. Rather, the “ ‘appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” Luedemann, 222 Ill. 2d at 550, quoting Bostick, 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. at 2387 (applying standard to persons seated on a bus boarded by law enforcement officers). It is in distinguishing an encounter between officers and a pedestrian as opposed to an encounter between officers and a person seated in a car that Luedemann underscored that different analytical questions are presented. Where the latter factual situation is presented, Luedemann cited with approval Professor LaFave’s four examples — in addition to the Mendenhall factors — as part of the analysis in determining whether a particular defendant was seized. Despite the fact that it is apparent that the Luedemann analysis applies to the facts in the matter at bar because defendant encountered the police not as a pedestrian but rather under circumstances wherein his “freedom of movement [was] restrained by some factor independent of police conduct” — namely, that he was seated in his car — the majority now states that the analysis in Luedemann is not applicable to Cosby’s case. The majority reasons that even though Cosby was seated in his car at the time of the encounter, his car was parked on the side of the road as a result of a traffic stop, rather than being approached by police when he was already parked. This narrow reading of Luedemann is unsupportable. Contrary to the United States Supreme Court’s decision in Brendlin and our recent pronouncement in Luedemann, the majority’s opinion today leaves the clear — albeit incorrect — impression that the Mendenhall factors are the exhaustive factors for determining whether a person is seized within the meaning of the fourth amendment. I am concerned that the majority’s analysis unnecessarily calls into question the continued viability of our analysis in Luedemann, a unanimous decision that is less than two years old.
The majority compounds its analytical errors by rejecting Cosby’s assertion that his traffic stop violated the scope prong of Terry based upon its unreasonable duration. The majority notes that Cosby maintains that Officer Kaus improperly treated the request to search defendant’s vehicle as if it were part of the traffic stop, because, in Cosby’s words, Kaus asked for consent to search “in the same breath” as he explained the warning and returned his paperwork to him, and that this unreasonably prolonged Cosby’s detention. The majority summarily rejects Cosby’s assertion, stating that “the record does not support such an argument.” 231 Ill. 2d at 276.1 strongly disagree.
The record reflects that defendant Cosby was stopped because he had a burned-out rear registration light. Officer Kaus wrote defendant a warning citation for this minor infraction and had no reasonable suspicion that defendant was involved in any other criminal activity. Nevertheless, Kaus radioed for a backup unit to come to the scene of the stop and waited for Officer Klima to arrive before Kaus returned to defendant’s vehicle to ask for defendant’s consent to search his vehicle. Defendant was not only asked for his consent immediately after a second police vehicle arrived at the scene and pulled up behind Kaus’ squad car, which had its flashing emergency lights and spotlight activated throughout the entire encounter,4 but also after the presence of a second officer at the scene was established, and while Kaus was in the course of returning defendant’s paperwork and explaining the warning citation. Contrary to the majority’s holding, the record amply supports defendant’s argument that although the justification for the initially lawful traffic stop had concluded, the seizure of defendant nevertheless continued — and, in fact, escalated through an increased show of authority by virtue of the appearance of a second police officer and vehicle5 —at the time Kaus asked defendant to agree to allow a search of his car absent any reasonable or articulable suspicion for continuing the seizure. Indeed, the prosecutor’s own stipulation during Cosby’s suppression hearing that “the officer asked for consent and got the consent almost immediately as he is handing the citation to the defendant,” combined with Kaus’ testimony at trial, confirms that the request for defendant to allow a vehicle search was made while defendant was seized as a result of the traffic stop by the two officers.
It is well settled that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500, 75 L. Ed. 2d at 238, 103 S. Ct. at 1325 (plurality op.); Brownlee, 186 Ill. 2d at 519. It is against this background that I observe that Kaus candidly testified that his intent to ask defendant to “consent” to a vehicle search was formulated prior to his returning defendant’s documents and motivated him to call for a backup unit — a series of events which Kaus testified caused him to wait in his car for a period of approximately five minutes until Officer Klima arrived at the scene. This period of time — coupled with the additional few minutes Kaus testified it took him to check defendant’s documents and prepare the warning — meant that defendant was detained for nearly 10 minutes to receive a warning for a burned-out rear registration light. I note that it is the State which “bears the burden of showing that a seizure based on reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Royer, 460 U.S. at 500, 75 L. Ed. 2d at 238, 103 S. Ct. at 1326 (plurality op.); Brownlee, 186 Ill. 2d at 519. In Cosby’s case, the conclusion is inescapable that he remained seized as a result of the traffic stop at the time of the search request, even though the justification for that stop had concluded. The continued detention was of unreasonable duration, as the officers lacked reasonable suspicion of any illegal activities on the part of defendant to continue to detain him. As Caballes makes crystal clear, a seizure that is lawful at its inception — i.e., here, the valid traffic stop— can nevertheless violate the fourth amendment “if the manner of execution unreasonably infringes interests protected by the constitution,” i.e., if the seizure “is prolonged beyond the time reasonably required to complete that mission.” (Emphasis added.) Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837. Under the facts presented, a reasonable person in Cosby’s position would not believe that the investigative stop had been concluded and that he was free to terminate the encounter, so long as additional police presence was called to the scene and Officer Kaus was continuing to ask investigative questions while returning defendant’s paperwork and warning citation for the original stop. Thus, contrary to the holding of the majority, the record clearly establishes that the continued detention of Cosby was of an unreasonable duration and constituted an illegal seizure.
The majority, however, finds that because Kaus returned Cosby’s paperwork to him, this automatically signaled that the traffic stop “came to an end,” and, therefore, the “relevant” question is whether the actions of the officers after the conclusion of the initial stop constituted a new, second seizure of defendant for purposes of the fourth amendment. 231 Ill. 2d at 276. First, as explained, I disagree with the majority’s summary finding that the traffic stop had concluded when the request to search defendant’s vehicle was made. Indeed, I note that the majority contradicts itself on this point within its opinion when, after stating — as noted above — that the traffic stop had come to an end prior to Officer Kaus’ request to defendant to allow a search of his vehicle, it subsequently states that after Kaus returned defendant’s paperwork, “[tjhere is no indication in the record that Kaus waited for any particular period before asking for consent.” 231 Ill. 2d at 283. Second, assuming arguendo that the traffic stop had concluded, the majority still errs by holding that defendant was not subject to a second seizure under the circumstances presented.
As stated, the majority improperly treats the Mendenhall factors as the exhaustive inquiry in determining whether a seizure has occurred. I further note that in discussing these factors, the court unduly narrows their application by interpreting them in an overly technical manner. For example, the majority notes that one factor to consider under Mendenhall is the presence of “several” officers and states that “[i]t is clear *** that the presence of only two officers, without more, is not a factor that would indicate a seizure occurred.” 231 Ill. 2d at 278. I question whether the majority has now adopted a bright-line rule which stands for the proposition that under any circumstances the presence of two officers will never be considered to have a coercive effect, despite our prior case law which has found that defendants have been seized under the totality of all the circumstances in instances where the encounter involved only one or two officers, and not more. See, e.g., Bunch, 207 Ill. 2d at 19-20 (defendant found to be “seized” during a traffic stop where defendant had an encounter with one police officer); People v. Gherna, 203 Ill. 2d 165, 180-81 (2003) (defendant found to be “seized” during a traffic stop when approached by two officers); Brownlee, 186 Ill. 2d at 520-21 (same).
It is my view that this court’s decisions in Bunch and Brownlee are factually analogous to Cosby’s case, support his contention that his suppression motion should have been granted, and that the majority’s attempt to distinguish these cases is unpersuasive. For example, in Bunch, this court found that the officer’s continued questioning of the defendant after the purpose of the traffic stop had been concluded “prolonged defendant’s detention beyond the completion of the purpose of the stop.” Bunch, 207 Ill. 2d at 17. Since the officer’s conduct in Bunch occurred after the justification for the traffic stop ended, this court looked to whether the officer’s questioning of the defendant was related to the traffic stop or supported by a separate, reasonable, articulable suspicion of criminal conduct. Finding none, the court concluded that defendant had been unreasonably seized by the officer.6 This is similar to the facts in the matter at bar, where defendant’s detention was unduly prolonged to allow the arrival of a backup officer at the scene which escalated the show of authority absent any reasonable basis, and where Kaus continued to question defendant after the purpose of the traffic stop had been concluded.
Similarly, in Brownlee, this court held that the defendant was unlawfully seized after the justification for the traffic stop had ended, where the two officers continued to flank both sides of the vehicle after returning the motorist’s documents and stating that no citations would be issued, paused for a “couple of minutes,” and then requested that the occupants agree to a consent search. We held that under those circumstances, “the officers’ actions constituted a show of authority,” and that a reasonable person “would likely conclude that, if he or she drove away, then the two officers would soon be in hot pursuit.” Brownlee, 186 Ill. 2d at 520. The majority attempts to distinguish Brownlee on the basis that unlike the couple-minute delay occasioned by the officers in that case, here there “is no indication in the record that Kaus waited for any particular period of time before asking for consent” from Cosby. 231 Ill. 2d at 283. As noted, however, this statement contradicts the position taken by the majority earlier in its opinion, wherein it finds that there was a break between the conclusion of the traffic stop and Kaus’ request to Cosby to allow a search, and rejects precisely the same argument it now embraces, writing: “While Cosby argues before this court that there was no break between the conclusion of the traffic stop and the officer’s request for consent to search, we conclude that the record does not support such an argument.” 231 Ill. 2d at 276.1 submit that the majority cannot have it both ways.
Of course, questioning by law enforcement officers does not alone effectuate a seizure. However, if the circumstances surrounding the questioning “are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded,” such questioning can result in a detention under the fourth amendment. Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762 (1984); see also Bunch, 207 Ill. 2d at 19-20; Brownlee, 186 Ill. 2d at 520-21. In my view, a reasonable person in the position of Cosby would not have believed he was free to terminate the encounter and drive away: Cosby was stopped in the early morning hours on a poorly lit and seldom traveled road; he was forced to wait an extended period until a backup officer arrived at the scene; two police cars with at least one having flashing emergency lights and an illuminated spotlight were parked behind his car; he was in the presence of two officers, with one having been called to the scene during the stop, which escalated the show of authority; he was asked to agree to a search of his vehicle as he was being handed back his documents and informed about the warning; and at no point was he told he was free to leave.7 Under the totality of the circumstances, a reasonable person would not feel free to terminate the encounter and go about his business. In sum, Cosby was seized. See Bunch, 207 Ill. 2d at 19-20; Brownlee, 186 Ill. 2d at 520-21. The seizure was unreasonable because the officers had no reasonable or articulable suspicion that Cosby was engaged in wrongdoing. Accordingly, Cosby’s subsequent “consent” to the search of his vehicle and his person was the product of an unlawful detention. In turn, Cosby’s arrest was tainted, and the fruits of the encounter should have been suppressed. The majority’s holding to the contrary merely pays lip service to the applicable analytical principles, and, by doing so, renders them meaningless.
I note two final points with respect to defendant Cosby’s case. As stated earlier, the majority opinion completely omits a number of key background facts with respect to Cosby’s case in order to reach its desired legal conclusion. The majority opinion omits from its “Background” that Kaus testified that he stopped defendant on a two-lane road with little or no traffic and poor lighting conditions with no overhead lights. Kaus’ testimony indicates that he had his squad car’s overhead emergency lights and spotlight activated for the duration of the stop. Kaus also testified that it was his custom to remain in his squad car until the backup officer arrived. After the backup officer — Officer Klima — arrived at the scene, he pulled his car behind Kaus’ vehicle. Kaus testified that it was only then that he reapproached defendant, asked him to consent to search his car, and asked defendant to get out of the car and stand at the rear passenger side of the vehicle. Kaus further testified that when defendant stood at the rear passenger side of his car, defendant was in the presence of Officer Klima and was speaking with him.
Based upon Kaus’ testimony, at the time that Kaus reapproached Cosby’s car, asked for a consent search, and directed Cosby out of his vehicle, it is apparent that Officer Klima was not only present at the scene, but that he was also standing outside of his own police vehicle at the passenger side of defendant’s car. It is my view that the only fair and reasonable inference which can be drawn from Officer Kaus’ testimony is that both officers had exited their cars and approached defendant’s vehicle, with one on each side of his car during this period. It is also fair and reasonable to draw an inference from Kaus’ testimony that he called for a backup unit and deliberately remained in his vehicle until Klima arrived for the purpose of having an additional officer at the scene of the stop — and an increased show of authority — at the time he planned to ask defendant for consent to search. It is also a fair and reasonable inference that the backup officer arrived at the scene in a police squad car and that the police vehicles would have had their lights activated; indeed, a contrary inference would seem unreasonable. I note that the trial court set forth no factual findings to dispute these reasonable inferences. I have evaluated the facts of record, and, after considering those facts against our own precedent (i.e., Luedemann) and that of the United States Supreme Court (i.e., Brendlin, Mendenhall), have reached a legal conclusion that is contrary to that of the majority.
Second, I note that although Cosby was pulled over for a minor traffic violation and issued a warning citation, Officer Kaus freely admitted that he formulated an intent to ask Cosby for a consent search prior to returning his documents to him. I am troubled by the specter of routine traffic stops being regularly transformed into so-called “consensual” contraband searches where there is no reasonable or articulable basis to suspect criminal wrongdoing. The fourth amendment exists to protect citizens against such an unreasonable interference with their liberty. The majority’s holding with respect to defendant Cosby stands for the proposition that, following the conclusion of a lawful traffic stop, officers may detain a vehicle absent reasonable suspicion of any illegal activity and for any amount of time, so long as they ultimately request and obtain “voluntary consent” to search the car. As I cannot countenance such a rule, I dissent in part from the opinion of the majority.
The unreasonableness of the police conduct in Cosby’s case is highlighted by the factual differences between his case and that of defendant Mendoza. As stated, I disagree with the majority’s exclusive use of the Mendenhall factors in deciding defendant’s constitutional challenge. However, viewing the totality of the circumstances presented, there is a significant difference in the extent of the coercive effect of the police conduct as a whole between the cases of Cosby and Mendoza. Unlike in the case of Cosby, the facts indicate that for Mendoza the traffic stop had come to an end at the time that he was asked to consent to a search of his vehicle. In addition, the record reflects that the additional questions and answers took less than 30 seconds. Under these circumstances, Mendoza exercised his right to refuse the request of the officers, to terminate the encounter, and to go about his business and drive away. The officers happened to be in a place where they lawfully had a right to be, during this consensual encounter, where they then observed in plain view what appeared to be a handgun in Mendoza’s vehicle. The officers, seeing the gun in plain view, at that point had probable cause to detain defendant for violation of the offense for which he was charged and ultimately convicted: aggravated unlawful use of a weapon (720 ILCS 5/24—1.6(a)(1), (a)(3)(A) (West 2002)). See Coolidge v. New Hampshire, 403 U.S. 443, 465, 29 L. Ed. 2d 564, 582, 91 S. Ct. 2022, 2037 (1971) (under certain circumstances the police may seize evidence in plain view without a warrant). Because Mendoza was not seized at the time the officers questioned him and observed the presence of the gun in his car, his suppression motion should not have been granted.
JUSTICES KILBRIDE and BURKE join in this partial concurrence and partial dissent.
Inote that the majority, in its opinion, concedes that “[t]he trial court denied the motion to suppress, but did not explain its reasoning.” 231 Ill. 2d at 266.
According to Professor LaFave, these examples highlight “why vehicle stops are generally viewed as seizures while pedestrian encounters typically are not.” 4 W LaFave, Search & Seizure §9.4(a), at 436-38 (4th ed. 2004).
As the majority notes, our decision in Harris partially overruled Gonzalez to the extent that Gonzalez held that the reasonableness of the traffic stop must — in addition to its duration — be judged by whether the officer’s conduct altered the fundamental nature of the stop. Harris, 228 Ill. 2d at 244. It is clear, however, that Harris preserves the duration prong as the focus of the Terry scope inquiry.
I note that the use of flashing lights as a show of authority is one factor specifically set forth in Luedemann that is indicative of a seizure. Luedemann, 222 Ill. 2d at 557.
Although the majority attempts to minimize the presence of Officer Klima at the scene of the stop by noting that Officer Kaus testified that Klima usually “handled the tow duties and such,” it is well settled that it is an officer’s objective conduct — and not his subjective intentions — that is relevant to determining whether seizure has occurred. People v. Smith, 214 Ill. 2d 338, 355 (2005), citing Michigan v. Chesternut, 486 U.S. 567, 575 n.7, 100 L. Ed. 2d 565, 573 n.7, 108 S. Ct. 1975, 1980 n.7 (1988). Here, it is undisputed that Klima arrived at the scene of the traffic stop prior to Kaus’ reapproaching Cosby’s vehicle to ask him for a consent search, and that Klima was present with defendant at the rear passenger area of defendant’s car immediately after Kaus obtained Cosby’s consent. It is this objective conduct — and not any alleged subjective intentions uncommunicated to defendant — which is relevant to the analysis.
I note that the continued validity of our decision in Bunch was reaffirmed in Harris. See Harris, 228 Ill. 2d at 244 n.3.
Although the majority notes that it is not constitutionally required to tell a motorist that he or she is free to leave before asking for consent to search the motorist’s car, knowledge of the right to refuse to consent is one factor to be taken into account in assessing the totality of the circumstances. Robinette, 519 U.S. at 39, 136 L. Ed. 2d at 355, 117 S. Ct. at 421.