dissenting:
This appeal is before us because of a supervisory order of the Illinois Supreme Court, directing this court to vacate and reconsider its previous order in this appeal, People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23), in light of the supreme court’s recent holding in People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008), which overruled the court’s previous decision in People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003), to the extent it held that the reasonableness of a traffic stop must be judged by whether the officer’s conduct altered the fundamental nature of the stop. We originally found that the trial court erred in denying defendant’s motion to suppress. Upon reconsideration, the majority affirms the trial court’s denial of defendant’s motion to suppress. Because I believe Cosby is both factually distinguishable and does not represent a change in the law that requires reversal of our prior decision, I dissent.
In our previous order, we found that: (1) “defendant was not free to go while Oliver was in the squad car being questioned by Hampton”; and (2) Hampton’s actions “both prolonged the detention and changed the fundamental nature of the stop.” People v. James, No. 3 — 05— 0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Thus, we reversed the trial court’s denial of defendant’s motion to suppress. People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Here, the majority finds that: (1) “traffic stops are no longer to be analyzed by the three-tiered test found in Gonzalez” (391 Ill. App. 3d at 1051); (2) “the traffic stop ended when, in the squad car, Hampton determined that the defendant had a valid driver’s license and told Oliver that he was free to go so long as the defendant drove” (391 Ill. App. 3d at 1052); and (3) Hampton’s actions after the stop ended did not constitute a second seizure and that Oliver’s consent to search the vehicle was therefore legal (391 Ill. App. 3d at 1051-53).
At the outset, I would like to call attention to the misleading nature of the majority’s statement that “traffic stops are no longer to be analyzed by the three-tiered test found in Gonzalez.” 391 Ill. App. 3d at 1051. This statement appears to imply that Gonzalez has been overruled in its entirety. A reading of Cosby, however, rebuts this implication. In Cosby, the State charged Michael Cosby with unlawful possession of drug paraphernalia and unlawful possession of cocaine, resulting from a search of Cosby’s vehicle and a cigarette pack belonging to Cosby. Prior to trial, Cosby filed a motion to suppress. The trial court denied the motion to suppress and the appellate court reversed. On appeal, the supreme court discussed the proper test to apply when attempting to determine whether police questioning during a “seizure” implicates fourth amendment principles. Cosby, 231 Ill. 2d at 273-76, 898 N.E.2d at 610-12. In doing so, the court overruled its previous decision in Gonzalez, but only to the extent it held that the reasonableness of a traffic stop must be judged by whether the officer’s conduct altered the fundamental nature of the stop. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. Specifically, the court stated:
“We have very recently held in People v. Harris, 228 Ill. 2d 222, 240[, 886 N.E.2d 947] (2008), that our decision in Gonzalez has been ‘unequivocally overruled’ by the United States Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005). As we noted in Harris, Muehler makes clear that the Court, in Caballes, rejected the reasoning that led to this court’s adoption of the ‘ “fundamental alteration of the nature of the stop” ’ portion of the ‘ “scope” ’ prong of Gonzalez and that all that remains of the scope prong is the ‘ “duration” ’ portion of that analysis. [Citation.] Thus we overruled Gonzalez to the extent it holds that the reasonableness of a traffic stop must be judged by whether the officer’s conduct altered the fundamental nature of the stop. [Citation.]” Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.
Clearly, the majority of the three-tiered test discussed in Gonzalez is still applicable when examining the propriety of searches and seizures that occur incident to a traffic stop. While the majority seems to imply otherwise, Cosby merely overruled the “ ‘ “fundamental alteration of the nature of the stop” ’ ” portion of the scope prong. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. Thus, after Cosby, the analytical framework used to determine whether police questioning during a seizure violates the fourth amendment is as follows:
“First, with respect to Terry’s scope requirement, a court must determine whether the questioning is related to the initial justification for the stop. If the questioning is so related, no fourth amendment violation occurs. If the questioning is not reasonably related to the purpose of the stop, the court must determine whether the officer had a reasonable, articulable suspicion that would justify the questioning. If so, there is no fourth amendment violation. In the absence of a reasonable, articulable suspicion, the court must consider whether, in light of the totality of the circumstances, the questioning impermissibly prolonged the detention ***. [The ‘alteration of the fundamental nature of the stop’ portion of the scope prong is no longer viable.]” Cosby, 231 Ill. 2d at 275, 898 N.E.2d at 612.
While the Cosby court specifically set out the applicable test when determining whether police questioning during a seizure violates the fourth amendment, the court ultimately did not apply this test. Instead, the court determined that the initial seizure had ended and thus the relevant question before it was whether a second seizure had occurred. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. One must first determine whether a seizure has occurred prior to determining whether an officer’s questioning during the seizure violates the fourth amendment. See Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. Specifically, the court stated:
“The appellate court in Cosby’s case found that the traffic stop was unreasonably prolonged. While [defendants] argue[ ] 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. The requests for consent to search in both the instant cases followed the officers’ returning of the defendants’ paperwork. At that point, the traffic stop came to an end. The relevant question is whether the officers’ actions after the initial traffic stops had concluded constituted a second seizure of either defendant.” Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.
The Cosby court analyzed this question under the principles found in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), and People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999). The Mendenhall Court stated that a person is seized when, either by physical force, or by a show of authority, his freedom of movement is restrained. Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. The Court gave examples of circumstances that might indicate a seizure had occurred: (1) the threatening presence of several officers; (2) an officer’s display of a weapon; (3) physical touching of the defendant by an officer; and (4) an officer’s use of language or tone of voice to indicate that compliance may be compelled. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Citing Mendenhall, the Brownlee court observed that a person is seized when, considering all of the facts and “ ‘circumstances surrounding the incident, a reasonable person would [not] believe[ ] that he was *** free to leave.’ ” Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564, quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. If an officer has neither probable cause nor a reasonable, articulable suspicion of criminal activity, the officer’s show of authority constitutes an unconstitutional seizure of the person. Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564.
Upon examining the principles announced in Mendenhall and Brownlee, the Cosby court found that no second seizure took place. Specifically, the court stated:
“Accordingly, applying the principles of Brownlee and Mendenhall, we conclude that Cosby was not seized and that his consent to search his car was therefore voluntary. The trial court’s decision denying Cosby’s motion to suppress was therefore not in error.” Cosby, 231 Ill. 2d at 284-85, 898 N.E.2d at 617.
Here, the majority employs the same approach found in Cosby to a materially different fact situation. Specifically, the majority finds that “the traffic stop ended when, in the squad car, Hampton determined that the defendant had a valid driver’s license and told Oliver that he was free to go so long as the defendant drove.” 391 Ill. App. 3d at 1052. Upon making this finding, the majority then undertakes a cursory review of the factors announced in Mendenhall in an attempt to determine whether a second seizure took place.
The majority’s premise is wrong, however, in light of the fact that its position that the traffic stop ended when Hampton told Oliver that he was free to go is both contradictory and legally incorrect. While I recognize that we have vacated our previous order regarding this appeal, I note that we originally found that “defendant was not free to go while Oliver was in the squad car being questioned by Hampton.” People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Again, an individual is seized for purposes of the fourth amendment when the circumstances are such that a reasonable person, innocent of any crime, would conclude that he was not free to leave. People v. Lopez, 229 Ill. 2d 322, 346, 892 N.E.2d 1047, 1061 (2008). Moreover, our previous order placed great significance upon the fact that Hampton’s repeated questions to Oliver regarding whether there were any weapons or contraband in the vehicle “occurred after what should have been the termination of the traffic stop.”3 (Emphasis added.) People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23).
I am perplexed as to why, absent any change in facts, the opposite position — that the seizure of defendant ended at the point where Hampton told Oliver he was free to leave — has now garnered a majority. Beyond the fact that the facts leading to our previous position that “defendant was not free to go while Oliver was in the squad car being questioned by Hampton” have not changed, the majority’s new finding simply defies logic.
Pursuant to Hampton’s order, Oliver was sitting in the passenger seat of Hampton’s squad car. Immediately after being told he was free to leave, but while still locked (according to Oliver the door was locked)4 in the squad car, Hampton asked Oliver whether there were any weapons or contraband in the vehicle. Oliver answered, “No.” Apparently, Oliver’s direct answer did not satisfy Hampton so Hampton asked Oliver, while he was still in the locked police car, if he was sure. Oliver’s response to this question, given while still seated in the locked car, was that he was sure, but Hampton could search if he wanted to. Clearly, no reasonable person sitting in a closed and locked squad car being questioned by a police officer about weapons or contraband would feel free to just leave. Moreover, it is ridiculous to assume that Hampton would have stood idly by if Oliver simply unlocked and opened the squad door, exited the squad and decided not to answer Hampton’s question. Even an individual who is fully aware of his or her legal rights would hesitate to take those steps that the majority apparently feels Oliver (or any reasonable person) would have felt free to take.
The majority, however, ignores these contextual facts and instead focuses solely upon the fact that Hampton, at one point during the encounter, told Oliver he was free to leave. In doing so, however, the majority has incorrectly applied the law. Both the United States Supreme Court and our supreme court have specifically instructed us on numerous occasions that we must look at “all of the circumstances surrounding the incident” when determining whether a reasonable person would feel free to leave. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; Lopez, 229 Ill. 2d at 346, 892 N.E.2d at 1061; Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564. We do not look solely at one isolated statement by the arresting police officer. In this case, the totality of the circumstances should tell us that Oliver remained seized, that the duration of the traffic stop was unreasonably prolonged, and his consent was not voluntary.
But what about defendant? I do not believe defendant was free to leave during the time Oliver was in the squad car being questioned by Hampton, so I conclude the seizure never ended as to him either. I reach that conclusion for the following reasons. Defendant was a passenger in the car being driven by Oliver. He was seized when Hampton made the traffic stop and took Oliver to the squad car. Hampton inquired about his driver’s license and defendant would reasonably have anticipated that the officer would learn that he was on mandatory supervised release. Defendant was not privy to and could not know that Hampton had told Oliver he was free to leave. He was not privy to and could not know that Hampton had conditioned Oliver’s release on defendant driving the car, thus implicitly authorizing him to drive even though he was not in possession of his driver’s license. What defendant did know was that he was sitting, by direction of a police officer, in a car that he carried no license to drive, that the driver of the car was detained by the officer in the squad car, and that if he drove away in the car, he would be violating the law while on mandatory supervised release. No reasonable person in defendant’s position would have felt free to leave. Thus, defendant, too, remained seized.
It is on this basis that I disagree with the majority’s analysis of this case, which incorrectly attempts to determine whether a second seizure occurred after Hampton told Oliver he was free to leave. Instead, the pertinent question in the instant case is whether the seizure, which never ended, violated the fourth amendment. In order to answer this question, we need to apply the three-tiered test the Cosby court set out but did not apply because it found the original seizure had ended when the officers returned the defendants’ paperwork and no second seizure subsequently took place. See Cosby, 231 Ill. 2d at 276-85, 898 N.E.2d at 612-17.
In our previous decision we first determined that the questioning of defendant and the subsequent search were not reasonably related to the initial justification for the stop. People v. James, No. 3 — 05— 0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). We then found that the record failed to establish a reasonable, articulable suspicion that would justify the questioning. People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Finally, we examined the scope prong of the analysis and found that Hampton’s actions “both prolonged the detention and changed the fundamental nature of the stop.” People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). While I recognize that the “ ‘ “alteration of the fundamental nature of the stop” ’ ” portion of the scope prong is no longer viable, the duration prong still exists. Crosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. The duration prong is now the sole focus of the scope inquiry. Harris, 228 Ill. 2d at 244, 886 N.E.2d at 961. Thus, if a court finds, as we previously did, that the questioning ultimately and impermissibly prolonged the detention (People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23)), any consent and subsequent search resulting from the questioning is tainted, and the fruits thereof should be suppressed. People v. Brownlee, 186 Ill. 2d 501, 519, 713 N.E.2d 556, 565 (1999).
The majority here affirms the trial court’s denial of defendant’s motion to suppress on the grounds that Hampton’s questions to Oliver after he told Oliver he was free to leave did not create a second seizure, and none of the Mendenhall factors indicative of a seizure were present. 391 Ill. App. 3d at 1051-53. The majority’s argument misses the point. As discussed above, the majority’s position is based upon the incorrect conclusion that the seizure came to an end at the point when Hampton told Oliver that he was free to leave. While I recognize Hampton also told defendant he was free to leave, this statement was only given after defendant provided Hampton with his name and date of birth. More importantly, however, the driver of the vehicle, Oliver, was locked in Hampton’s squad car at the time Hampton told defendant he was free to leave. As we previously found, “defendant was not free to go while Oliver was in the squad car being questioned by Hampton.” People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23).
Thus, unlike the situation in Cosby, the seizure in the present case did not end. We, therefore, are not faced with the same question the Cosby court was faced with, specifically, whether the police “actions after the initial traffic stop[ ] had concluded constituted a second seizure of *** defendant.” Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. It is on this basis that I disagree with the majority’s finding that Cosby requires us to affirm the trial court’s denial of defendant’s motion to suppress. Instead, beyond eliminating one, but not both, of our scope findings, I believe Cosby does not negate our original determination that the trial court erred in denying defendant’s motion to suppress.
Again, our previous holding found that: (1) Hampton’s questioning was not related to the initial justification for the stop; (2) Hampton lacked a reasonable, articulable suspicion that would justify the questioning; and (3) Hampton’s questioning impermissibly prolonged the detention. People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). The facts involved in this case have not changed since the entry of our original order. Nor has any dispositive change in the law taken place since the entry of our original order.51 therefore adhere to my original position that “Oliver and defendant were illegally detained at the time they gave consent to the search.” People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Thus, the search was tainted and the fruits thereof should have been suppressed. See Brownlee, 186 Ill. 2d at 519, 713 N.E.2d at 565.
For the foregoing reasons, I would reverse and remand the trial court’s denial of defendant’s motion to suppress.
Hampton’s repeated questions whether there were any weapons or contraband in the vehicle came almost immediately after he told Oliver he was free to leave.
Although the argument gains weight if Oliver was correct that the door was locked, it retains its substance even if the door was only closed and not locked.
I acknowledge that the supreme court has found that “the alteration of the fundamental nature of the stop” portion of the scope prong is no longer viable and all that remains of the scope prong is the “duration” portion of that analysis. This change does not affect this particular case upon reconsideration, however, because we have already found that Hampton’s questioning impermissibly prolonged the detention. People v. James, No. 3 — 05—0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23).