Docket No. 108089.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

T HE PEOPLE

OF THE ST

ATE OF I

LLINO IS, Ap

pella nt v

. ANTHONY OLI

VER, Appellee.

Opinion filed March 18, 2010.

JUSTICE KILBR IDE deliver

ed the jud gment of the cour t, with opinion. Chief Justice Fitzgerald and Justices Freeman, Thomas, Garman, Karmeier, and Burke conc urred in the judgment and opinion.

OPINION

The issue in this appeal is whether a police o ffi cer’s r equest to search the trunk of

a driver’s vehicle, following the consensual sea rch of its interior after a valid traffic stop, vi olates defendant’s constitutional right to be free from unreasona ble searches and seizures (U.S. Const., amend. IV; I ll. Const. 1970, art. I, §6 ). The circuit court of Henry County denied de fendant ’s motion to suppress the evidence recovered fr om his ve hicle’ s t ru nk . U lt im at el y, defendant was convicted of two c ont rolled-substance offenses. A majority of the ap pellat e court reversed, concluding tha t defendant
was subje cted

to an unla wful seizu re wh en the of

ficer r equeste d to search the trunk . 387 I ll. App. 3d 1045, 1052 . For th e reaso ns that follow, we reverse the judgment of the appellate court and affirm the-2- circuit court’s judgment.

I. BACKGROUND Following a traff

ic stop in the early morning hours of November 14, 2002, Deputy Sheriff Glenn Hampton recovered cocaine f romthe trunk of defe ndant’s v ehicle. After be in g arrested and taken to the police station, defendant signed a statement admit ting the cocaine was his, but he den

ied any intent to se ll it. Defe

ndant wa s charg ed with possession of a controlled substance and possession of a co ntrol led substance with intent to deliver. Defendant’s passenger, Orlan d o James, was

also cha rged w ith the same offen ses. Defendant

filed a p retrial motion to quash

arrest and suppr

ess his confession, arguin

g, in re levant pa

rt, he wa s s ubje cted to an illegal seizure. Codefendant James also file d a motion to suppress. With the parties’ agreement, the trial court cond ucte d a consolidated suppression hearing on those motions. At the suppression hearing, Officer Hampton testified he stopped defendant’s car for following another v ehicle too closely in a constructionzone. When O f ficer H ampton as ked defe ndant for his d river’s license, defendant produced an I llinois identification card

. Officer Hampton did not observe any thing suspicious inside defendant’s vehicle, but he did notice a strong-smelling frag rance he suspected of masking the smell of contraband. While radioing defendant’s informationfrom the Illinois identification card to police dispatch, Officer Hampton placed defendant

in the passenger seat of h is squad car. Officer Hampton lear ned that defendant was not th e registered owner of the vehicle and did not have a valid I llinois driver’s license. Defendant’s passenger, James, howe ver, had a valid Illinois driver’s license. After receiving this information, Officer Hampton, still inside the squad car with defendant, returned defe ndant’s identification card, explained he was not going

to arrest defendant for operating a vehicl e withouta lice nse, and t old defendant he was free to leave if James drove the car . Office

r Hampton

also aske d defend

ant if he ha d any weapons or contraband

inside the vehicle. Defendant replied that he did not. Officer Hampton then aske d defendant if he was sure, and defendant responded, “If y

ou want to search it, g o a head.” Officer-3- Hamptonest imated that the time between when he stopped the
ve h icle and when

defenda nt gave consent t o search the car

was less than 10 minutes. Officer H ampton returned to defendant’s vehicle and explained to James that d

efenda nt h ad consented to a search of the vehicle

. Officer Hampton asked James if he c ould sear ch the vehicle, and James re pl ie d a ff

ir ma ti ve ly. Officer Hampton estimated hesearched the interior of the car for between 10 a nd 15 minutes. During the search, Off

i cer Hampton had defendant stand at the front of the vehicle and

James at the rear of the vehicle. Officer Hampton found no contraband inside the vehicle. U pon co mpletion of the interior search, Officer Ha mpton asked defendant and Jame s if there was any contraband in the vehicle’s trunk. Both replied neg ativel y, e xplaining the trunk containe d only cloth ing. Officer Hampton next asked to search the trun k, and defendant and James both consented. During his search of the trunk, Officer Hampton recovered a plastic bag of cocai ne. Officer Hampton thenarrested defendant and James. According to Officer Hampton, defendant and James never wit

hdrew th eir

consent for the interior

and trunk search es. Defendant and James were not handcuffe d during the stop, and neither asked if they were under ar

rest or free to leave. Officer Hampton was the only police offic er present during thetraffic stop and subsequent searches. Inresponse, defendant

tes tified that after Officer Hampton
rece ived the information from the radio dispatch, he told defendant he was free to go. Defendant denie d, however, that he gave Off icer Hamptonpermission to search the car. Instead, de fendant stated that Officer Hampton simply told defendant he would sea rch the car and, if he d id not f

ind any contraba

nd, he would let them leave if James drove. Officer H a mpton did no t ask def endant f or his con sent to search. During

this con versation, defendant was locked inside the police car alone with Officer Hampton. Althoug h defendant

felt free to leave when Officer Ha m pton told him he could go, he no longer believed he was free to leave when Offic er Hampton told defendant he was going to search the ve hicle. Officer Hampton ma

de defe ndant sta nd at the f ront of th e vehicl e during the search. According to def endant, Officer Hampton opened the trunk from inside the vehi cl e during the interior search. Off icer-4- Hamptonthen searched the trunk of the vehicle. Defendant testified Office r Hampton

did not ask for permission to search the interior or the trunk. Defendant did not hear Of ficer H ampton ask James for permission to search the interior and trunk. James also testified, and he denied that Officer Hampton asked him for per mission to search the vehicle’s interior and trunk. James could not hear the conversation between defe ndant and Offi ce r Hamptonwhen they we

re inside the p oli ce car. After the interior search, James saw Officer Hampton remove the key from its ignition and use the key

to open the trunk. Upon heari ng the disputed evidence, the trial court enter ed a detai l ed written order, including factual findings, a nd denied defendant’s motion to suppress. The court found that the traffic stop
was justified

and did no t constitut

e an illegal deten

tion. Afte

r observing the cre dib ility of the witnesses, including their de meanor d uring testimony

, and maki

ng rea sonable i

nferen ces fro m th e evidence, the cour

t further found tha

t defend ant a nd James felt free to leave when Officer Hampton a sked for consent to search, and defendant voluntar ily cons ented to a search of his vehicle’s interior and trunk. The appellate court reversed, holding that de fendant’s motion to suppress should have been

granted. People v. Oliver , No. 3–04–0427 (2006) (unpublished orde

r under Su preme Court Rule 23). We denied the State’s p etition for leave to appea l, but, exercising our supervisory
au th or it y, dir e cted the appellate court to vacate its judgment a nd reconsider

in light of Illinois v. Caballes , 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), and People v. Caballes , 221 Ill. 2d 282 (2006). Onremand, the appe llate cou rt aga in reversed th e trial court’s judgmen t. People v. Oliver , No. 3–04–0427 (2007) (unpublished order under Supreme Court Rule 23). We denied the State’s petition for leave to a pp ea l, bu t, ag ai n e xe rc is in g o ur su pe rv is or y au th or it y, directe d the appe llate cou rt to vacate

its judgme

nt and re consider

in light of People v. Cosby , 231 Ill. 2d 262 (2008). Onremand

for the second time, a majority of the appellate court reversed the trial court’s judgment. The court concluded the police officer’s request to sear ch the ve hicle ’s tru nk aft er cond uctin g a-5- consensual search of the interior constituted an un constitutional seizure and invalidated

defendant’s consent, requiring suppre ssion of the evidence recovered fr

om the trunk. The dissenting justice argued that t his cou rt’s decision in Cosby was base d on fact s “near ly identica l” to those of thi s case an d upheld a search under similar circumstances. 387 Ill. App. 3d at 1053 (Ca rter, J., dissenting). We allowed t

he State’ s petition f

or leave to appea l. 210 I ll. 2d R. 315.

II. AN ALYS IS Onappeal, the State ch a llenges the appellate court’s reve rsal of the trial court’s orde r de nying de fendant’s motion to suppress the evidence recovered from his trunk. When reviewing a trial court’s suppressionruling, this cour t applies a

two-part standard of review. People v. Luedemann , 222 Ill. 2d 530 , 542 ( 2006) , citi ng Ornelas v. United States , 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (199 6); Cosby , 231 Ill. 2d at 271. The trial court’s factual findi ngs are ent

itled to g reat de ferenc e, and we

will reve rse them only if they are ag ainst

the manifest weight of the evidence. Cosby , 231 I ll. 2d at 271 , quot ing Luedemann , 222 Ill. 2d at 542 . The trial court’s ultimate legal ruling

on whether suppression is warranted, however, is reviewed de novo

. Cosby , 231 Ill . 2d at 271, q uoti ng Luedemann , 222 Ill. 2d at 542. Citing Cosby , the State

a rgues defendant’s seizure during the traffic stop termi

nated wh en the of

ficer to ld defendant

he was f ree to leave and the officer’srequest to searc h the trun k after search ing its interior did not con stitutea subsequent unconstitutional seizure. The State further argues that none of the factors recognized

by the United States Supreme Court in United States v. Mende nhall , 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), or any other r elevant factors supporting a finding of a subse quent sei zure, ar e applic able in this case. The State the

refore maintains

the trial court pr operly denied defendant’s motion to suppress because he was no t seized when Officer Hampton sought consent to searc h the trunk. Defendant

respo nds t hat, a ltho ugh he voluntarily consente d to an interior search, his subsequent consent to search the trunk was involuntary

because he was unconstitutionally seized by

the ti me-6- Officer Hampton so

ught h is conse nt to search the trunk. Citing M endenha ll , defendant argues that a per son cannot volun taril y consent to a search if he is illegally seized when he give s consent

. Thus, defendant

argues the appellate court prope rly reve rsed the trial court’s suppress ion ruling because his conse nt to search the trunk was invalid when given during an unc onsti tutional seizure, requiring suppression of the evidence recovere d from the trunk. As a preli minary matter, we note it is undisputed that Officer Hampton’s traffic

stop it se lf was a c onstitutionally permissib le seizure. The parties also agree that the initial traffic-stop seizure ended before Officer

Hampton sought

consent to search. The parties disag r ee, however, on whether defendant wa s illegally seized whe n Off ic er Hampton sought consent to search the vehicle’s trunk a fter completing the consensual interior search

. Acco rdingly, the sole issue
we consider in this appeal is whether defendant was seized within the meaning of the fourth a mendment when Off

icer Ha mpton aske d to search the trunk after the valid t raf fic stop and consensual interior
se arch. See Cosby , 231 Ill. 2d at 276 (when an offic er asks for consent after a traffic stop has ended, therelevant question is whether the officer’s actions constituted an unconstitutional seizure). The fourth am end ment guarantees the “rig ht of the people to be
secure in their person s, ho uses, pap ers, and effec ts, aga

inst
unreasonablesearches and seizures.” U. S. Const., amend. IV. The Illinois Constitution of 1970 similarly protects an indiv idual’s right to be free from unreasonable sea rches and seizures. Ill. Const. 1970, art. I, §6 ; see also People

v. Caballes , 221 Ill. 2d 282, 314-16 (2006) (Ill inois’ constitutional sea rch and seizure provision interpreted consistently with federa

l provision). It is settled that“[t]he purp ose of the Fourth A mendment

is not to eliminate all contact between the police and the citizenry , but ‘to prevent arbitrary and oppressive interference by enforcement off

icial s with the privacy a

nd personal security

of individuals.’ ” Mendenh all , 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877, quoting United States v. Martinez-

Fuerte , 428 U.S. 543, 554, 49 L. Ed. 2d 1116, 1126, 96 S. Ct. 3074, 3081 (1976). Thus, individuals may
c halle nge the government’s actions under the fourth ame ndm ent i f their freedom of

movement

is restrained by me ans of physical f orce or a s ho w o f a ut ho ri ty. Brendlin v. California , 551 U.S. 249, 254, 168-7- L. Ed. 2d 132, 138, 127 S. Ct. 2400, 2405 (2007); Cosby , 231 Ill. 2d at 273-7 4, cit ing Mendenh all , 446 U.S. at 553 , 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. In Cosby , this court used the Men denhall standard to determine whether t he drive r of a ve hicle wa s seized when, afte r a traf fic st o p ended, the police officer sought consent to search

the vehicle. Cosby , 231 Ill. 2d at 276. Under the Mendenh all standard, a person has been seized when, considerin

g the tot

ality of the ci

rcumsta nces, a reasona ble person would be lieve he was not free to leave. Mendenh all , 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. The Mendenh all

Court recognized four factors indicating a seizure without the person attempting to leave: (1) the threatening presence of several officers; (2) the display of a weapon by

an offic er; (3) s ome physical touching of the person; or (4) usinglanguage or tone of voice compelling the individual to co mp ly with the of ficer’ s reques ts. Mendenh all , 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877;
see also Peopl e v. Murray , 137 Ill. 2d 382, 390 (1990) (adopting Mendenh all

standar d); Luedemann , 222 Ill. 2d at 553 (same). The Mendenh all

factors are not de sig ned to be exhaustive, how e ver, and coe

rcive be havior si milar to those fac tors may also constitute a seizure. Luedemann , 222 Ill. 2d at 557. Nonetheless, we have recognized that the absence of any Mendenh all factor s “is highly instructive” on the issue of whether a seizur e has occurred. Luedemann , 222 I ll. 2d at 5 54. Acc ordingly, in Cosby , this court concluded

that the two defendant drivers inconsolidated appeals had notbeen seized by off

icers who asked for consent to sea rc h their vehicles after traffic stops when none of the four Mendenh all factors were present. Cosby , 231 Ill. 2d at 288. Here, as defendant

concedes, three of the

four Mendenh all factors
are indisputably absent. Office r Hampton

was the so le police officer involved, he did not

display his weapon, and he did not make physical contact with defe

ndant. On

the four th facto r, th e offi cer’s use of compelling language or tone of voice, defendant contends that we should infer tha

t Office r Hampton

used comp elling la

nguag e to
secure defenda

nt’s comp liance s imply

because defenda nt ultimate ly complied with Officer Hampton’s re qu est. As defendant acknowl edges , however , the rec ord conta ins no te stimon y or other evidence of Officer Hampton using a co mpell ing tone or language

.-8- Absent any evidentiar

y support, we nec essarily re ject defendant’s position. Thus, as in Cosby , none of the Men den hall factors are present in this case. Neverth

eless, defendant contends an ad d itiona l factor exists showing he was seized, making this case distingu ishable from Cosby . According

to defendant, unlike Cosby when the officer sought consent immedi ately following the traffic stop, here the officer sought consent t

o search the trun

k only after 1 0 to 15 minut

es h a d elapsed for the consensual interior search. Def end ant ma intains he
wa s not free to leave

during t his time an

d Office r Hampton

chose defendant’s waiting

location . Based

on these c ircumsta

nces, defendant contends he was ill egally

seized w hen he wa s asked to consent to the search of his trunk. We cannot accept defendant’s ar gument , howe ver, bec ause it would trans form every c onsensual vehicle search into an unconstitutional seizure. Obviously, defe ndant had to wa

it somewhere while Office r Ham pton conducted the consensual interior search of his vehicle. By

its very language, “[t]he touchstone of the fourth amendme

nt is reasonableness.” Leudemann , 222 Ill. 2d at 566, citing United Sta tes v. Knig hts , 534 U.S. 112, 118, 151 L. Ed. 2d 497, 505, 122 S. Ct. 587 , 591 (200 1). I n our view , it was en

tirely
reasona ble for Officer Hampton to direct defendant and his passenger to stand at opposite en ds of the vehicle parked safely along the roadside after receiving consent to sea rch. Simply put, in the complete absence of any of the Mendenh all factor s, defenda

nt’s 10 to 15 minute wait while Officer Hampton conducted the consensual interior search cannot be construed as constituting a n unconstit

utional seizure. An individual’s agreement to wai t du ring a consensual search is inherent in the consent he gives for that search and the individual
cann otlater complain the search time constituted an improper seizure

. This conclusi on is consi stent with the trial court’s findi ngs that defendant felt free to leaveafter the traffic stop ende d and volu

ntarily consented to the subsequent search es. Alth ough defendant testified he did not feel free to leave w hen Off ic er Hampton sought c onsent to
sea rch and denied giving consent to searc h, the trial court

i s responsi ble f o r weighing the credibility of the witnesses at suppressionhearings. People v. Slater , 228 I ll . 2d 137 , 149 (2008). Here, the trial court resolve d the con flicting testimony in favor of Officer Hampton . Revie wing the court’s factual findings with the-9- appropr iate level of

defere nce, we do not find

them to be against the manifest weight of the evidence. C osby , 231 Ill. 2d at 271, quoting Luedemann , 222 Ill. 2d at 542. Thus, in accordancew ith Mendenh all and Cosby , we conclude defendant w as not sei zed within t he meani

ng of the

fourth amendment

when Of f icer Ha mpton aske d for con sent to se arch his trunk. Because defendant was not unconstit utionally seized when he gave consent to search the trunk, h is con sent and the subsequent search were va lid, and th e appell ate court erred when it reached the opposite conclusion.

III. CONCL USION For the fore going

reasons , we rev erse the judgmen

t of th e appellate court. The circuit court’s judgme nt is affirmed.

Appellate court judgment reversed; circuit court judgment affirmed.