dissenting:
I would find that the totality of the circumstances in this case did not amount to reasonable suspicion sufficient to support the stop. In contrast to the majority, I would find that the officer’s knowledge of the defendant’s restricted driving permit (RDP) is a relevant fact which must be taken into account in analyzing the reasonableness of the stop under Terry. Therefore, I respectfully dissent from the majority opinion.
The facts in this case are not in dispute. Officer Thomas Belski was on routine patrol in an unmarked squad car in a residential area of LaSalle, Illinois. He ran a registration check on defendant’s license plate on his mobile computer. The computer showed that the registered owner had a revoked driver’s license and an RDP but did not show the details of the RDP After confirming that the photograph matched the driver, Officer Belski stopped the defendant and arrested him for driving while license revoked. As he testified later, prior to the stop, Officer Belski had a hunch that the defendant was driving outside the scope of his RDP based on the fact that it was a Sunday at 7:13 p.m., the defendant was wearing a tank top, baseball cap, and sunglasses, and, in Officer Belski’s experience, RDPs are issued only for “work or hardships.”
The majority holds that the facts were sufficient to support a Terry stop because the facts known to the officer — that the registered owner had a revoked driver’s license and that the person driving the vehicle strongly resembled the photograph of the owner — satisfied the elements of the offense of driving while license revoked. 238 Ill. 2d at 507-08, 512. With regard to the RDR the majority holds that “Officer Belski was not required to have a reasonable articulable suspicion that defendant was not in compliance with the terms of his RDR as that is not an element of the offense.” 238 Ill. 2d at 510. This is so, explains the majority, because an RDP is an exception to the offense which the State does not have to prove at trial. 238 Ill. 2d at 510.
I disagree with the majority’s analysis because it abandons and does not even mention the “totality of the circumstances” test which this court has consistently applied to review the propriety of Terry stops. The majority’s unwarranted application of a new “elements of the offense” test essentially permits spot-checks of every driver who has been issued an RDI^ without regard to any surrounding circumstances.
The determination of whether a seizure or stop is reasonable 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 v. Ohio, 392 U.S. 1, 19-20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879 (1968). Under the first prong, “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989), citing Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884-85. “Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. *** But the essence of all that has been written is that the totality of the circumstances — the whole picture— must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 629, 101 S. Ct. 690, 695 (1981). See also United States v. Lawshea, 461 P.3d 857, 859 (7th Cir. 2006) (in evaluating the reasonableness of a Terry stop, we examine “the totality of the circumstances known to the officer at the time of the stop”); United States v. Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002) (the “totality of the circumstances” include the experience of the officer, the behavior and characteristics of a suspect, whether the location of the stop is a “high crime” area, and an officer’s prior dealings with the individual or knowledge of a criminal record).
Until today’s majority decision, this court has consistently applied the “totality of the circumstances” test to fourth amendment challenges of stops and seizures. See People v. Moss, 217 Ill. 2d 511, 529-30 (2005) (we judge the reasonableness of the search by its particular facts and circumstances, using the “totality of the circumstances” analysis); People v. Lee, 214 Ill. 2d 476, 488 (2005) (“the totality of the circumstances, including the citizen complaint, were certainly enough to heighten the officers’ suspicion and warrant further investigation”); People v. Thomas, 198 Ill. 2d 103, 110 (2001) (“[vjiewed as a whole, the situation confronting the police officer must be so far from the ordinary that any competent officer would be expected to act quickly”); People v. McGowan, 69 Ill. 2d 73, 78 (1977) (applying the same test).
In looking at the totality of the circumstances, we must include in our analysis all of the facts known to the officer prior to the stop. It is clear from the Supreme Court’s discussion of the facts in Terry that all surrounding circumstances are relevant, including facts which dispel an officer’s reasonable suspicion that the defendant is engaged in criminal activity. In Terry, the police officer observed the defendant repeatedly pacing in front of a store, peering into the store window, and conferring with two other men. In the officer’s experience, the defendant’s actions were consistent with “casing a job.” The Court held that the subsequent stop and search of the defendant were reasonable under the fourth amendment:
“We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery — which, it is reasonable to assume, would be likely to involve the use of weapons — and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker’s store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief.” (Emphases added.) Terry, 392 U.S. at 28, 20 L. Ed. 2d at 910, 88 S. Ct. at 1883.
In the case at bar, the majority acknowledges that “[a]n officer, of course, may not ignore facts which would dispel suspicion of criminal wrongdoing.” 238 Ill. 2d at 510. The majority offers the following illustration of this principle: “if the officer is aware that the terms of the driver’s RDP allow him to drive at the time and place in question, then no basis exists for executing a Terry stop, in the absence of any traffic violation or suspicion of other criminal wrongdoing.” 238 Ill. 2d at 510. The majority then states that “the mere possibility that the RDP issued to defendant allowed him to drive at the time and place that Officer Belski observed him does not negate the officer’s reasonable suspicion that defendant was driving on a revoked license,” and that “[ajlthough Officer Belski was also aware that defendant had been issued an RD5 that fact alone would not cause reasonable suspicion to evaporate.” (Emphases added.) 238 Ill. 2d at 511, 512. The majority fails to recognize, however, that the officer’s knowledge of the defendant’s RDP is a fact which dispels suspicion of criminal wrongdoing. Thus, it is relevant to whether the officer had reasonable suspicion that the driver was engaged in criminal activity.
“Under Terry, a police officer may briefly stop a person for temporary questioning if the officer has knowledge of sufficient articulable facts at the time of the encounter to create a reasonable suspicion that the person in question has committed or is about to commit a crime.” People v. Lee, 214 Ill. 2d 476, 487 (2005). If the defendant was driving within the terms of his RDP, he was not committing a crime. Thus, the officer’s knowledge of the defendant’s RDF¡ without knowing the terms of the permit, reduced the likelihood that defendant was committing a crime. I agree with the dissenting justice in the appellate court that “[d]riving on a revoked license is not a crime if the individual is driving within the scope of his/her RDE Thus, in order to effectuate a valid traffic stop, I believe an officer must have a reasonable articulable suspicion that the driver is operating the vehicle outside the terms of his/her RDP.” (Emphasis added.) 389 Ill. App. 3d at 237 (McDade, J., dissenting).
The majority considers only two facts in concluding that the facts were sufficient to create the reasonable, articulable suspicion necessary to effect a Terry stop: (1) that the license of the registered owner of the vehicle had been revoked; and (2) that the person driving the vehicle strongly resembled the photograph of the owner. Under the “totality of the circumstances” test, however, all of the surrounding facts must be included in the analysis. In addition to the two facts above, Officer Belski knew that: (3) the registered owner of the vehicle had an RDP; (4) the driver was driving the vehicle on a Sunday at 7:13 p.m.; and (5) the driver was wearing sunglasses, a baseball cap, and a tank top.
Taking into account the additional facts not considered by the majority, I would hold that the facts do not support a finding of reasonable suspicion in the case at bar. The facts known to the officer in this case did not amount to more than a mere “hunch” that the defendant was committing a crime. The fourth amendment requires that the police officer articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883. “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. “The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same— and so are law enforcement officers.” Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629, 101 S. Ct. at 695.
I agree with the appellate court in Johnson, which held under similar facts that the limited allowable purposes for an RDP “make it less likely that a person with an RDP will be driving within the scope of an RDP on a Sunday afternoon, but they do not make it improbable.” People v. Johnson, 379 Ill. App. 3d 710, 713 (2008). The facts in the present case do not support the paticularized suspicion required for a stop. See Johnson, 379 Ill. App. 3d at 713-14. It is entirely possible that the defendant was driving to or from work on a Sunday at the time his vehicle was stopped. At the suppression hearing, Officer Belski admitted that he had no way of knowing before he stopped defendant whether defendant was working or whether he had other clothes in his car. While I would not require that the officer know the exact terms of the RDP before stopping a driver, I believe there must be more specific facts than are present in this case to support the stop.
Accordingly, I would reverse the judgment of the appellate court and affirm the trial court’s order granting defendant’s motion to quash arrest and suppress evidence.