dissenting:
I respectfully dissent from the majority’s conclusion in the present case. It is my opinion, based on our supreme court’s ruling in People v. Cosby, 231 Ill. 2d 262 (2008), that the majority’s position can no longer be maintained. In Cosby, a case with facts nearly identical to those of the present case, our supreme court found that a new seizure of the defendant did not occur and that the consent that the defendant gave for a search of the vehicle was valid. Cosby, 231 Ill. 2d at 285. The same conclusion is mandated in the present case.
At the hearing on the motion to suppress in the present case, Officer Hampton testified that after he received the information regarding defendant, the passenger (James), and the vehicle, he gave defendant back his identification card and told defendant that he was free to leave. Hampton specifically testified that he was the only officer at the location of the traffic stop and that before he asked for consent to search the trunk of the vehicle, he did not draw his weapon, he did not handcuff defendant or James, and he did not tell defendant or James that they could not leave. Moreover, no evidence was presented to suggest that Hampton’s tone of voice or language was such as to indicate that compliance with his request was required. Contrary to the analysis set forth in Cosby, the majority’s analysis in the present case places no significance on the complete absence of any of the Mendenhall factors in defendant’s encounter with Officer Hampton. Thus, I would respectfully disagree that under the circumstances of this case, a reasonable person in defendant’s position would not feel free to leave, given the absence of the Mendenhall factors. That Hampton did not find anything in the passenger area of the vehicle does not somehow taint Hampton’s request to search the trunk of the vehicle. Such a conclusion would essentially return us to the approach set forth in People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003), an approach which our supreme court has clearly rejected. See Cosby, 231 Ill. 2d at 276. Given our supreme court’s analysis in Cosby and its previous analysis in People v. Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 (2006), it is inappropriate for this court to speculate on what would have happened if defendant and James had either ignored the officer’s request to search or had refused it and then to use that rationale to support a finding that compliance with the request to search was compelled.
In addition, in ruling on the motion to suppress, at least as to the issue of whether consent was given, the trial judge found Hampton’s testimony to be more credible than that of defendant or James. It is clear from the trial judge’s written comments in the order denying the motion to suppress and his oral comments at the hearing on defendant’s motion to reconsider that the credibility of the witnesses played at least some part in the trial judge’s ultimate conclusion. The majority’s ruling in the present case makes no mention of the trial judge’s determination of credibility.
For the reasons stated, I respectfully dissent.