seizure was reasonable later who mr or just responded for over a mile he committed no traffic violations no other crimes he parked in a parking lot and turned off the vehicle without issue and the officer waited in and jason parking lot and watched him for five minutes or approaching the vehicle eventually he asked mr winchester to open the door to his vehicle was it improper for him to approach  i would disagree with that and know the point that while he is supposed to be on the lookout communicating is by definition according to the u s supreme court divorced from criminal activity and that is assisting people on the side of the road who might have broken down so go slouching over the drivers who are through the passenger side when he says that yes that's right or did the officer know this person before you know him personally yes now you know what his medical history might goes back to your on his very first question everything that he'd seen up to that point should inform his concern that this isn't people versus robinson which we cited in our brief where an officer was all the seen there was a car running on the side of the road in the driver was asleep and no one knew how long the car been there no one knew quite what the situation was the car was running so it indicates there was a problem people don't just fall asleep at the wheel but are still running first mr mr winchesters case where the officer knew exactly how for his driving strangely according to the officer that at one fifteen in the morning who are in a parking lot and then slouching over to things around or first i would disagree that he was driving strangely  see what is what is issue was i might have reacted differently when i knocked on the window to check on him sworn in but i probably would check them and i what is it that we would expect a police officer to do taking into account he may hope the guy is intoxicated he hoped that subjectively but objectively he's showing concern versus well there's a couple points in response the first is objectively i don't think all of his actions demonstrate that he was genuinely concerned i think its actions  but when this is the united states supreme court says that the touchstone of forth then analysis is reasonable to us and we're talking about reason on this we're balancing the government interest versus and if you can't roll it out and some fairly reasonable form to say open the door because nothing about or aside from the fact that he took a period of time to wake up indicated that there was any emergency there was there was no other issue he wasn't he wasn't having a stroke he wasn't the one we know that i just how does he know that how does he know i mentioned insulin shock with him from a layman's point of view wouldn't that be that concern is inconsistent with everything else that the officer witness because if we're talking about someone insolent that doesn't make sense in the context of him being able to drive home break no laws no swerving no anything of that sort and then suddenly as soon as he parks in that parking space without issue that's the exact moment he has an emergency hunting i don't know that i like to think i'm as reasonably informed as the next guy but i don't know that insulin shock maybe he's having your problem and he can't sit up why wouldn't that be a reasonable fault of the police officers because mr winchester had the wherewithal the presence of mind you know this was a police officer and say i don't want you here and regardless of whether the officer thinks there is an emergency we're still talking about this individual's right to privacy and security and the purpose of communicating is to assist him but if he doesn't want that assistance then there's no reason to say the officer and force himself on that person and say i must assist you even though mr winchester is saying i don't want your help i don't want your presence i don't want to speak  but on top of that your honor there's any number of reasons you could have not sat up straight and decided to acknowledge the officer directly to his face he's a private  him saying i don't want you here a limb unaids that fourth amendment interest in community care taking which is divorced from criminal activity and soley for the purpose of helping him if the officer sets out to help someone and a person says i don't want your help the government no longer has any interest in that interaction and at bottom with women guards against these arbitrary intrusions and if a citizen says i don't desire your presence and we're talking about a thing that invasion is now arbitrary there's no purpose for it if the individual doesn't want or require assistance so respectfully your honor and the totality of the circumstances following mr winchester home and i would also respectfully disagree with oneself suppose this is a motel and the police officer is there for no reason and he walks into the reception area and he sees a fellow sitting in a chair with his car keys  help from your room with death with that be community care taking or would that be maybe you shouldn't drive or do you need help with your room or should i talk to the hotel reasonable to approach you yes but the distinction there is has not how long the guy's been there and he hasn't witnessed his behavior in the preceding ten fifteen minutes where there weren't any issues that would arouse suspicion or concern or works with the suspicion or the concern about sleeping in a hotel  point where he asked mr winchester to open the door to demonstrate that he was fishing for criminal activity following for over a mile you observe no criminal violations and yet still pulled into an adjacent parking lot and watched him for five minutes just and his his stated concern was when he gets out of the vehicle when i saw nobody exit the vehicle i decided to wait and see why that person would not exit their vehicle after parking in an area like that because he was concerned he doesn't say he just says he was yes the state agrees that there's two fundamental concepts that that control this case why and whether the officer's actions were reasonable and still at the totality of the circumstances in this case however the state disagrees that that's a tally of the in this case i've got one twenty in the morning officer ryan so i observed the defendant driving lawfully he testified that he was driving lawfully near the u of i campus he observed the driver leaning forward over this searing we all focused extremely fired on the task of driving officer snow did not began to follow the defendant at that time he made that observation thought it was a bit strange officer so observe the vehicle again shortly thereafter and at that time he followed the vehicle which is perfectly lawful for an officer to do a search no observe the vehicle driving a bad again testified that the vehicle was driving lawfully there was never a dispute as to whether the vehicle was the vehicle turned into a parking lot and officer snow turned into an adjacent parking lot i'm certain i testified that he turned into that parking lot intending to simply go around a lot and i did it but he noticed that one vehicle parked in its own parking and no one ever got out of the car and at this point i'd like to encourage others to bear in mind that it's one thirty in the morning on a college campus as has been discussed earlier there could be any number of reasons why someone wouldn't accept their vehicle in the middle of the night perhaps there is a m believe that was something that was suggested by the defendant and his three men to your honor again continuing with the totality of the circumstances in this case after about five minutes with no accident the vehicle officer snow approached he didn't see someone tinkering around on their cell phone talking on their cell phone perhaps his favorite song was on the radio listening to that song in the car that's not what he saw and plainview he saw the defendant slumped over half down in his car but not only that when he approached the vehicle he saw me  the keys to the car in one hand and a bottle of tea in the other hand as i suggested by just a segment maybe he was having some sort of diabetic problem an insulin issue perhaps he went for officer is very important in and of itself not only has he passed on in the car he still has the keys to the car in his hands at that time officer snow attempted to wait him out banging on the window no response he called in for back out and he said that he was concerned at that time there was a medical emergency this man this passed out he won't wake up in his vehicle thirty seconds of course in hindsight it doesn't sound like that one but when you're there in that moment i know the totality of the circumstances considering whether this off group that there some just question your day how long was he banging on the window and i think the record demonstrated it was about thirty seconds before the defendant woke up i said suggests your arse and the heat of the moment when this is happening that's kind of a long time to wake somebody up at that time says hey can you open the door there is some discussion justice next suggested that when you see something like this and anyone including a police officers first instinct to say are you are right you know what's going on here but once the defend lost but that doesn't indicate that he's ok that there is not a problem and again under the totality of the circumstances the state takes quite the opposite stance as a defendant but the fact that the officer had observed him for approximately ten minutes or so leading up to this incident that gave him even more reason to be concerned about the welfare of this person and the welfare of the general public he saw the defendant acting strangely while he was initially driving toward the by campus so the officer was already on notice that something maybe is wrong with this person there's something not quite right with this person so the state contends that even though it the defendant said no police and gave him the finger he wasn't alert he wasn't acting like he was ok the officer still had every i believe it was my understanding of the record that he called for backup sort of while in the process of trying to wait at the defendant his microphone was not on at that time so there is not exactly i know or at his radio yours we have the state believes that this officer did exceptional police work and this case he observed the defendant driving awfully but he could sense that perhaps something was not quite right when he initially saw the defendant driving and focusing extremely hard on this task of driving he didn't stop the defendant at that time there's no terry problem here he then saw the defendant again continue to drive follow him that's fine you can follow him and then when he observed that he never got out of the vehicle that's when he again made contact with the vehicle and i'd like to just quickly go back to something that was discussed earlier with my opposing counsel what is he supposed to do when he sees someone passed out in their cars the way what if there was a medical emergency he could died in the car and then why this officer acted in a perfectly reasonable manner under the totality of the circumstances the middle of the night on a college campus you've already seen this guy exhibiting some odd behavior discussed a defendant's two prior dui offenses not as aggravating factors but to explain to the defendant why you're not going to get probation for that unless your honour's have any other questions the state  and that i recall at least not in those expressed terms i know that the trial court ended up discussing sort of there was some talk whether this was a consensual encounter versus the community care taking exception i think that's what the trial court on right as mr winchester is doors opened and i i believe the first thing you hear is off so saying don't get out don't get out so the entire proceeding efforts to wake him up  winchester to comments none of that is reported and it's significant suddenly as soon as the doors open and officers know they will testify about some of the facts about mr winchesters appearance and his breath that's when he turns on me that's when he says i think i've got up and up to that point he testifies it was thirty seconds at trial he doesn't mention how long it was in the motion and that's something i would just say is it simply adds to are you suggesting he's not telling the truth i'm suggesting that like some of his other testimony it was slightly embellished at the very at the motion  moment he starts following mr winchester up to parking in the parking lot and he says i intended to pull into the parking lot to turn around but he doesn't explain why he decided not to he just no one ever asks him it's never a was it on director cross he just concern and some people say that if you're driving on the highway and you're following the speed limit and you're driving very intently those of the cars that ought to be stopped well i would disagree with that as  that i can comment on that or i did also want to briefly at the moment when mr winchester wakes up it's also important to know what officer snow didn't testify what you didn't say and i compare that  to carlson which is in our brief where you have a similar situation guy on the side of the road officer wakes him up and the guy immediately prices like a cigarette and there doesn't exist and that's that's concerning that's a little weird slumped over how does he also know of looking at him that he's asleep and not having lost consciousness him further according to the also he's knocking on the window and he's just asleep what i want to hear responded more quickly the officer it doesn't matter what he knows subjectively it's what's reasonable objectively ok i'm looking at the situation through the officers out you're right it's subjective how do i know from what they also said