Docket Nos. 100681 , 102584 c ons.



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

THE PEOPLE OF THE STATE OF IL LI NOIS, Appellant, v. MICHAEL

P. COSBY, Ap pellee.–THE PEOPLE OF THE STATE OF IL LI NOIS, Appellant, v. HUGO MENDOZ A, Appellee.

Opinion filed September 18, 2008.

JUSTICE GARMAN de

livered the judg me nt of the court, with opinion. Chief Justice Fitzgerald and Justices Thomas an d Karmeier concurred in the judgment and opinion. Justice Freeman concurred in par t an d dissente d in part, with opinion, joined by Justices Kilbride and Burke.

OPINION

These consolidated ca ses involve unrelated traffic stops of vehicles driven by

defendants Cosby a

nd Mendoza.

BACKGROUND Michael Cosby The State initial ly charged Cosby with unlawful possession of drug paraphe

rnalia ( 720 I

LCS 600/3.5 (West 2000)) and unlawful possession of coca

ine (720 I LCS 570/402(c) (West 2000)), resulting-2- from a search of

Cosby’s vehicle and of

a cigarette pack

belong ing to Co sb y. The drug paraphernalia c harge w as later nol-prossed by the State. Cosby filed

a moti on to suppress evidence. Trial counsel and the State stipu

lated to th

e admissio n of the po lice rep ort writt en b y Officer Steven Kaus and

then pre sented a

rgumen ts to the circuit court of Will County. The police report is not in the record on ap peal. However, the appellate court stated the stipulation provided that Kaus would testif y th at he stopped Cosby for not having a proper rear registrationlight. Cosby

provided valid insurance information and a speeding ticket in l

ieu of a d

river’sli cense. Kaus re

turned to his squad car and called for

backu p. He ver

ified tha t Cosby had a va lid driver’s license and that the re were no outstanding wa

rrants f or his arrest. When the backup of fice r arrived, Kaus approached Cosby ’s
car, returned his speeding ticket and insurance card to him, and gave Cosby a warning for the rear light violation. Kaus then asked for

con sent to search Cosby’s c ar. Cosby consente d. Kaus founddru g pa ra ph er na li a i n t he co ns ol e o f t he ca r a nd he ar re st ed Co sb y. The trial cou

rt denie d the motion

to suppre ss, but did n ot explain its r eason ing. At Cosby’s trial, Kaus testified that at approximately 1:30 a.m. on July 12, 2001, he stopped Cosby’s car for having no rear license plate light. Cosby handed him a speeding ticket and a n insuran ce card. K au s went bac

k to his squa

d car, w here he called f or backu p in

a nticipation of requesting Cosby ’s consent to search his car. Ab ou t fiv e minutes later, th

e backu p office r arrived. Kaus w ent back to Cosby’s car , ret

urned the speeding ticket and insurance card, and gave Cosby a written warning about the rear registration light. Kaus then askedCosby for

consent to search his car, which Cosby gave. Prior to searching the car, Kaus asked for and received consent from Cosby to search his perso n. Cosby

removed all items f

rom his pockets, Kaus in spected them, and Cosby replac ed the items in his pockets. Kau s then proceeded to search Cosby ’s car. Kaus found a crack pipe in the car’s cente

r co nsole. He

placed C osby

under ar rest and took him to the police sta

tion. Ther e, Cosby empti ed his pockets a

nd place d his propert y on a tray, inc ludi ng a packag e of cig arettes . Cosby called h is wife to come to

the jail a nd post b ond. As Ka us was giving Cosby back hi s p ro pe rt y, he discovered four rocks of cra ck cocainehidden with in th e cigare tte pa ckagin g.-3- The jury conv icted Cosb y of the po ssess ion ch arge and, following

a sente ncing h earing, the trial court sentenced Cosby to 24 months of probatio n, six months in

the count y ja il, and pa yme nt of fine s. Trial counsel filed a motion to reconsider sentence, which was denie d. Counsel did not file a posttrial motion. Cosby appealed, arguing tha

t the tria l court e rred in d eny ing his motion to suppress evidence. The appellate court f irst addressed Cosby’s forfeit

ure of hi s argument on appeal, noting that Cosby had failedto prese

rve the i s sue i n a posttrial motion. However, the

a ppellate court elected to consider the issue, “[b]ased on th e constitutional nature and

underlying

implication of

the alleged error.” Relying on this court’s decision in People v. Gonzalez , 204 Ill. 2d 220 (2003), the appellate court held that Kaus’ questioning of Cosby and his search of Cosby ’s car were un related to the circumstances justifying the stop, that Kaus lac ke d any reasona ble, art iculable suspicion that would

support his further detention and questioning of Co sb y, and that Kaus’ actions impermissibly prolong ed Cosby’s deten ti on and changed the fundamental natur e of the stop. Ac co rd in gl y, the appe

llate cou rt held tha

t the moti o n to suppre ss should have been granted. Cosby , No. 3–03–0681 (unpublished order under Supreme Court Rule 23). Justice Schmidt diss ented, a rguing that Gonza l ez has been implicitly overrul e d b y the United States Supreme Court’s decision in Illinois v. Caballes , 543 U.S. 405, 160 L. Ed. 2d 842, 1 25 S. Ct

. 834 (2005). Relying

on other d

ecisionsof this court and the Supre me Court, Justice Sch

midt would h ave found the sea rch of Co sb y’ s car legal o n the basi s of a val id consen t. We granted the

State’s petition for lea

ve to appe al (210 I

ll. 2d R. 315(a)).

Hug o Men doza Mend oza was charged in the circuit cour t of Kane Coun ty w it h unlawful use of a weapon (720 I LCS 5/24–1.6(a)(1), (a)(3) (A) (West 2002)). Mendoza’s trial counsel filed a motion to suppress evidence. A hearing on that motion was held, at which two police officers testified. At abo ut 11 p .m. on May 10, 2004, two Aurora police office rs, Inspectors Jeff

Wiencek and Joe Weber, observed Mend oza-4- driving his Pontiac Grand Prix sedan. They noted that the c ar’s rear license plate cover

was tinte d, in viola

tion of I llinois law. The

y a lso noticed a red ba

ndana ha nging from t he re arview mirror of Mendoz a’s car, which they considered a gang sy

mbol of the Vice Lord s. In addition, the officers dete rmined the banda n a to be large enough to obstruct Mendoza’ s vie w , which was also a violation of Illin ois law. The officers pulled Mendoza over . Pursuan t to their request , Mendoza ha

nded them

his drive

r’s li ce nse and proof of insurance. After determining that the license and insur ance ca rd were valid and that Mendoza had no outstanding warrants, the officers decided to ask Mendo za for pe

rmission to

search his car. In explaining

this decision, Wiencek, who had been a gang investig ator

for seve n ye ars, testified that the neighborhood was kno wn f or it s g an g a ct iv it y. Altho u gh Wiencek did not know whether Mendoza was a gang member, he knew f

rom c overt surveillance, police reports, and interviewi ng peopl e that Mendoza was an “affiliate” of the Vice Lord s. Mendoza had beenseen in the prese nce of g ang mem

bers. The bandana hanging from Mendoza’s rear view mirror was red, which

was one of the colors used by the Vice Lords. Using

the bandana was

one way of sign ifying a ffilia tion with the gang. The officers we re concerned

that Mendoza might have a gun in his car. After checking Mendoza’s driver’s license and insurance, the offic ers returned to the
car, one on each side. Weber retur ne d Mendoza’s license and insurance card, ga ve him a verba l warn ing, and aske d him if he had anything illegal in the car. Mendoza responded that he didnot. Weber then as ked M endo za for perm issio n to se arch

his ca r. Mendoza refuse d consen

t. Meanwhile, Wiencek, who was standing on the passenger side of the car, shined his flashlight inside the car and saw the butt of a gun sticking out from under the driver’s seat between Mend oz a’s feet. Not wanting to create a

hostile situation by drawing his g un on Mendoza, Wiencek tried to surreptitiously signa l Weber to the presence of the gun. However, W eber w as talking to Mendoza

and Wienc ek could not get Weber’s attention. After Mendoza refused c onsent to search his car, Weber told him he was free to leave. Mendoza started to drive away an d W ie nc ek to ld We be r a bo ut th e g un . W eb er ye lled at Mend oza to stop, but he did not. The two officers got into their squad-5- car and drov e after

Mendoza. Wi encek c ould see M e n doza’s head and shoulders moving, but could not tell what h e was doing. Webe r did not not ice any move

ment. The officers pulled Mendoza over aga i n

. They ordered Mendoza to exit the car. They hand cuffe d him and patted him down. Wiencek searched the car. Alt hough Wie

ncek did notfind a gun under the driver’s seat, he found a h andgun

underne ath a plastic tray in the c enter console of Mendoza’s car. The trial cou

rt, relying on Gonzalez , granted Mendoza’s motion, concluding that Weber’s questionsto Mendoza after the traffic stop

was concluded

were neither related to the traffic stop nor justified by a reasonable suspicion of additionalcriminal activity. Since the gun was not discovered until the officers had already violated the four

th amendment

by t heir que stioning

of Mendoza , the tr

ial cour t found that the gun would not have been discovered absent the violation. The State appealed. The appellate court rejected the trial court’sreliance on Gonzalez

. However, the court nonetheless affirm ed the trial court’s grant of Mendoza’s motion to suppress. T h e court r easoned that Gonzalez only applies to tra ffic stops that are still ongoing. Once Weber ret urnedMendoza’ s driver ’s licens e and insu rance c ard to him , th e tr affic stop concluded and Mendoza was free to leave. Thus, the proper inquiry is whether

Weber’s questioning amounted to a second

s eiz ure. Questioning constitutes a seizure if, in light of the circumst ances, a reasonable person would not have fe lt free to leave. If there is a seizure, the four

th amend ment is violated if there is no constitutional justification for it. The appellate court concluded that Mend oza was seized, noting the presence of more than one officer, that Mendoza was not told he was free to leave, that the officers used

a “flanking maneuver” in which one officer stood on each side of the
car, and that Wien cek shined a flashlight into the car. The cour t fur ther found that the officers lacked either proba ble cause or a
reasona ble articulable suspicion that Mend oza had committed or was about to commit a crime. The court no ted that Wiencek did not see the gun until after Mendo za was seized. Thus, this fact could not support the seizure of Mendoza once the traffic stop was concluded. Mendoza
, 364 I

ll. App. 3d 564, 581. We allowed the State’s petition for leave to appeal (210 I

ll. 2d R. 315(a)) and

consolida

ted this ca se wi th th e a pp ea l i n P eo pl e v . C os by.-6- ANA LYSIS Standard of Review This court recently

set forth the applicable principles in People v. Luedemann , 222 Ill. 2d 530 (2006):

“In reviewing a trial court’s ruling on a motion to

suppress evidence, we apply the

t wo-part standard of review adopted by the Supreme Court in Ornel as v. United States , 517 U.S. 690, 699, 134 L. Ed. 2d 911, 9 20, 116 S . Ct. 1657, 1663, (1996). Under this standard, a trialcou rt’s findings of historical fact should be revi ewe d only for clea r error, and a reviewing court must give due weight to any infere

nces drawn from those facts by the f

act finder. Ornelas , 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. In othe r words, we giv e great deference to the trial court’s factual findings, and

we will reverse those findi ngs only if they are against the manifest weight of the evidence. Peoplev. Sorenson
, 196 I ll. 2d 425, 431 (2001). A reviewing cour t, however, remains free to undertake its own assessment of the facts in relation to the issues and may

draw its own conclusions when deciding what relief should b e granted. People v. Pitman , 211 Ill. 2d 502, 512 (2004). Accordingly , we review de novo the trial court’s ultimate legal ruling as to whether suppression is warranted. Ornelas
, 517 U.S . at 699 , 13 4 L. Ed. 2d at 920, 116 S. Ct. at 1663; Pi tman , 211 I

ll. 2d at 51 2; Sorenson , 196 Ill. 2d at 431.” Luedemann , 222 Ill. 2d at 542-43.

People v. Cosby, No. 100681 Ini ti al ly, we note that Cosby failed to file a p osttrial motion raising the issue of the trial c ourt’s de nial of hismotion to sup

press
ev id en ce . In st ea d, hi s t ri al co un se l f il ed on ly a motion toreconsider sentence. The State argue s that Cosby has therefor e forfeited any argument that the trial court erred in deny ing his motion to suppre ss. I t also a rgues that the appellate court should not have addr essed Cosby ’s argument. To preservean alleged error for re view, a defendant must raise a timely objection at trial and raise the error in a written posttrial motion. Peoplev. Enoch , 122 Ill . 2d 17 6, 186 (1988 ). Thi s lon g--7- standing rule is consistent with section 116–1 of the Code of Criminal Procedure of 1963 (725 IL CS 5/116–1 (West 2006) (g overn ing procedurefor filin g motion f or new tr ial)) and servesthe purpo se of allowing the trial court “ ‘the oppor tunity to gran t a new tr

ial, if warranted.’ ” Enoch , 122 I ll. 2d at 186, q uoti ng People v. Caballero
, 102 Ill. 2d 23, 31-32 (1984). Nonetheless, in a c riminal case, an issue not properly pre served

may still be raised on appe al under Sup reme Court Rule

615(a) ( 134 I

ll. 2d R. 615 (a)), w

hich prov ides: “Any error, defect, irreg

ula rity, or varianc e which does notaffec t substanti al righ ts shall be disregarded. Plain errors

or defect s affect ing su bstan tial rights may be not iced al thou gh they were not brought to the attention of the trial court.” The appella

te court didnot engage in plain-error review. Instead, the court reviewed Cosby ’s forfeited argument “[b]ased on the constitutional nature and

underlying

implication of

the alleged error.” This court conducted

an extensive review of the pla in-erro r rule in People v. Herron , 215 Ill. 2d 167 (2005), where we stated: “The plain-e

rror doctrine, a s it

has developed

in Illinois, allows a review ing c ourt to reach a forfeited error affecting substantial rights in two circumstances. F irst , where the evidence in a case

is so close

ly b alanced that the

jury ’s guilty verdict may have r

esulted from the error

and not the evidence,

a reviewing cour

t may consider a forfe ited err or in orde r to preclude an arg

ument tha

t an innoc ent p erson wa s wrong ly convicted. [Citation .] Seco nd, where the error is so serious that the de fendan t was d enied a subs tanti al righ t, a nd thus a fair trial, a reviewing court may consider a forf

eite d error

in order t o preser

ve the int

egrity of the jud

icial pro cess. [Citations.] This so-c alled disj unctive t est does not offer two divergent interpretations of plain error, but instead two different ways to ensure

the same thing–namely , a fair trial.” Herron , 215 Ill. 2d at 178-79. The appellate court emphasized the cons titut ional nature of the alleg ed error in deciding to review Cosby ’s argument despite hi s forfeiture. However, the mere fact that an a lleged er ror af fects a constitutional right

does not provide a separate ground f or review, for “evenconstitutional errors can be forfeited.” Peoplev. Allen , 222 Ill.-8- 2d 340, 352 (2006). Thus, the appellate court err ed i n addressing Cosby ’s forfe

ited arg ument on th

is basis. However, we note that

the f irst step in plain-e

rror re view is to determine whether error o ccurred. People v. Piatkowski , 225 Ill. 2d 551, 565 (2007) (“the first step is to determine whether error occurred in the giving of

the instruction”). Absent reversible error, there can be

no plain error. Herron , 215 I ll. 2d at 18 7; Peoplev. Williams , 193 I ll. 2d 306, 349 (2000). A ccordingly , we first determine whether any error occurred in Cosby ’s case. The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in the ir p ersons, house s, papers, and effects, ag ainst unreasonable searches and seizures.” U.S . C ons t. , am end . IV. In addition, article I, section 6, of the Illinois Constitution of 19 70 pr ovides that “[t]he people shall have the right to be secure in their persons, houses, paper s an d oth er possessions against unreasonable searc hes, sei zur es, invasions of privacy or interc eptions of

communic ations by eavesdropping device s or other means.” Ill. Const. 1970, art. I , §6. In it ia ll y, we must determine the proper framework f or ou r analy sis. The United States Supre m e Court has characterized the detention by p olice of

individua

ls during a

traffic stop as a “seizure” of “persons” within the meaning of the fourth ame

ndment. Berkemer

v. McCarty , 468 U.S. 420, 436-37, 82 L. Ed. 2d 317, 332-33, 104 S. Ct. 3138, 3148 ( 1984) , citi ng Delaware v. Prouse , 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396 (1979). A pe rson is seized when, by mea

ns of physical forc e or a show of au th ority, the person’s freedom of movement is restrained. United S tate s v. Mendenh all
, 446 U.S . 544, 553, 64 L. E d. 2d 497, 5 09, 100 S. Ct. 1870, 1877 (1980). The S upre me Court further elaborated on that point: “We

conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in vie w of all of the circumst

ances su rrounding the in cide nt, a rea sonable person would have believed that he was no t fr ee to leave. Examples of ci rcumstances that might indicate a seizure, even where th e pe rson did not attempt to leave, would be the threatening presenc e of seve ral offi cers, the disp lay of a weapon by an offic er, some physica l touching of the perso n-9- of the citizen, or the use o f language or tone of voic e indicating that

compliance with the officer’s request might be compelled.” Mendenh

all , 446 U.S. at 554, 6 4 L. E d. 2d at 509, 100 S. Ct. at 1877. This court adopted

the Mendenh

all factors in People v. Murray
, 137 Ill. 2d 382, 390 (1990). In Berkemer , a case involving the application of Miranda v

. Arizona
, 384 U.S. 436, 16 L. Ed . 2d 694, 86 S. Ct. 1602 ( 1966), to traffic stops, the Supreme Court observed that the “usual traffic stop” is more ana

logous to a so-called Terry

stop (see Terry v. O

hio , 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) than to a formal arrest. Berkemer
, 468 U.S. a t 439, 82 L . Ed. 2d at

334, 104 S. C t. at 3150. Howeve

r, the Cou rt cautio ned in

a footnot e that “[n]o

more is impli e d by t

his analo gy

than that

most traf

fic stops r

esemble , in durati on and atmosphere, the kind of brief detention authorized i n Terry

. We of course do not suggest that a traff ic stop sup po rted by probable caus e m ay n ot exceed the bound s set by

the Four

th Amendment

on the scope of a Terry

stop.” Berkemer , 468 U.S. at 439 n.29, 82 L. Ed. 2d at 334 n.29, 104 S. Ct. at 3150 n.29. Nonetheless, this cour t and m any other c ourts have analy zed traffic stops under Terry

principles, regardless of whether the initial stop was supported by pr

obable cause or reasonable suspi ci on. See, e.g. , People v. Gonzalez , 204 Ill. 2d 220 (2003) (and case s cited therein ); People v. Bunch , 207 Ill. 2d 7 (2003). In Gonzalez , this court applied Terry principles to a traffic stop during wh ich a police officer requested identifica tion from the defenda nt, who was a passenger in the stopped veh icle . Citing Berkemer
, we noted that, because the usual traffic stop is mo re analogous to a Terry

investigative stop than to a forma l arrest, a fourth amendme

nt challe nge to the rea sonableness of a t

raffic stop is analyzed under Terry

principles. A Terry

an aly sis involves a dual in qu ir y: (1) whether the officer’s action was justified at its inception, and (2) whether theaction was reasonably related in scope to the circumstances that justified the interference in the first place. Gonzalez
, 204 Ill. 2d

at 228-29. We concluded that the officers’ stop of the vehicle was supported by probable cause. Thereafter , we set fo rt h an analytica

l framework to use in determining whether police questioning during a

traffic stop viola

tes the fo urth ame ndment. F irst,-10- withrespect to Terry ’s scope requirement, a cour t m ust determine whether the quest ioning isrelated

to th e i nitial 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 c ourt must d etermine whether the officer had a reasonable, articulable su spici on th at wou ld ju stif y the ques tion ing. If so, there is no fourth amendment violation. In the abse nce of a reasonable, articulable suspicion, the court must consider whether, in light of the totality of the circ umstances, the questioning impermiss ibly

prolonged the detention or changed the fun d amental nature of the stop. Gonzalez , 204 Ill. 2d at 235. The State argues that this case is not cont rolled by Gonzalez

. Al te rn at iv el y, the State

also ar gues tha

t if this court finds t

hat a Gonzalez analysis is required, w e shoul d recon sider Gonzalez and overrul e it

as incons istent with

fourth amendment jurisprudence. The Statealso cont

ends that Gonzalez has been implicitly

overruled by

the United States Supr eme C ourt’s decision in Illinois v. Caballes , 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005). We have ve

ry recent ly held in People v. Harris , 228 Ill. 2d 222, 240 (2008), that our decision in Gonzalez has been “unequivocal l y 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 rea soning th at led to th is c ourt’s ad option of the

“ ‘fundamental alteration of the nat ur e of the stop’ ” portion of the

“ ‘scope’ ” prong of Go nz alez and that all that remains of the scope prong is the “duration” portion of that analysis. Harris , 228 Ill. 2d at 242. Thus we overruled Gonzalez to the extent it holds that the

reasona bleness of a tra

ffic stop must be judged by w hether the officer’s conduct

altered the fundamental nature of the stop. Harris
, 228 Ill. 2d at 244. The appellate court in Cosby’ s case found that the traffic stop was

unr easonab ly

prolonged. While Cosby ar gues before this court

tha t there was no break be

tween the conclusi on of the t

raffic stop and the officer’s request fo r con sent to search, we conclude that the rec ord does not support such an argument. The requests for c onsent to search in both of the instant cases followed the officers’ retu rning of the defenda nts’ paperwork. At that

point, the traffic stops cam

e to an end.-11- The relevant question is whether the officers’ actions after the initial tr af fic stops had concluded constituted a second seizure of either defenda nt. Thus, the question b efore u s in Cosby ’s case is whethe

r Kaus’ request to search Cosby ’s car a fter the traffic stop had ended constitu ted a new seizure for fourth amendment purposes. We an al yz e this question under the principles set forth in Br ownlee and Mendenh all

. In Brownlee , the defend ant was a passenger in a car stopped by two police officers for traffic violations. After securing identification from the drive

r and all

passeng ers and d

etermining that no outstanding warran

ts existed, t

he offic ers dec ided not to issue any traffic citations . T he officers returned to the car, one on each side. One office

r return ed to the d

river hisdriver’ s l icense an d insurance card and explained that n o citation s would be issu ed. Th en, the officers paused f

or a coup le of minut

es, say in g nothing. They continued to stand one on each side of the car. Following this pause,

one of the officers requested permission to search the c ar. The driver askedwhether he had a ch oice in the matter , to which the requesting officer answered that he did. The driver

consented to the search. The officers found marijuana and an open beer bottle in the c ar. The officers arrested the car ’s occup ants a nd, d uring a search of the defendant’s person incident to her arrest, they found coc aine. People v. Brownlee , 186 Ill. 2d 501, 506-07 (1999). The trial court granted the defenda nt’s motion to quash he

r arre st and suppresse vide nce; the appellate court reversed a nd remanded. Applying Terry

princ iple s to the officers’ actions following the conclusion of the tra

ffic stop , this cour

t conclud ed that the officers effec te d a seizur e of the c ar’s oc cupants b y f lanking the car while saying noth ing for a perio d of tw o min utes. Citi ng Mendenh all , we noted that a person is seized when, in view of al l the facts and circumst ances, the person would not feel free to leave. Brownlee , 186 I ll. 2d at 517. Because the officers ha d no probable cause or

reasona ble suspic ion to detain the occupants, this show of authority constituted an illeg al seizure in violatio n of the f

ourth ame

ndment. Under the circumstances, this court found that a reasonable pe rson would have concluded

that he or she was not

free to leave. Brownlee
, 186 Ill. 2d at 520.-12- We do not find the presence of any of the Mendenh

all factor s in Cosby’s case. Co sby

argue s that th e pres ence of two police officers sugge sts coercion. That there were two off icers pre se nt here, however, does not weigh in favor of finding a se izure. Mendenh

all referenced

the pres ence of

“sever al” off ic e rs. In Luedemann , one officer approached a parked ca

r in wh ich the de fendan t was s itti ng. When the off

icer observed signs of intoxication, he radioed for backup. Another officer arrived on t he scene and the officers approached

the defendant’s car, one on eac h side. I n d iscussing whether the defendant was seized by the officers’ actions, this court noted that none of the Mendenh all factor s were p

resent. Luedemann
, 222 Ill. 2 d at 553. I

t i s cl ear, then, that the presence of only two office rs, without more
, is not a factor that would indicate a seizure occurred. There is no indication in the rec ord that either of the officers touchedCosby’s person, that they display ed their guns, or that Kaus used language or a

tone of voice indicating to Cosby that he had no choice but to consent to the search of his car. Cosby emphasizes that Kaus did not tell him that he was free to leave prior to reque st ing consent to search. However, while thi s is a factor to consider, the Supreme Court has h

eld that such advice is not required. See Ohio v. Robin ette , 519 U.S. 33, 35, 136 L. Ed. 2d 347, 352, 117 S. Ct. 417, 419 (1996). Cosby also arg ues that he did not f

eel free to leave because

Kaus treated the request to search as if it were part of thetraffic stop. Cosby maintains that the officer asked forconsent t

o search “in the s ame breath” as he explained the warning and returned Cosby ’s paperwork to him. According to Cosby, this made it less likely that

he would feel f ree to leave. However, the appellate cour t’s recitation of the stipulat ed po lice report that formed the basis of the suppression hearing does not supportthis arg ument. I n addition , at Cosby ’s trial, Kaus simply testified tha t he “e xplained the nature of the written warni ngs for no license plate light. I gave him back h is paperwork, and then I asked him consent to sea rch the Pontiac.” This testimony simply indicates that shortly afte r returning Cos by ’s paper work to him, Kaus requested consent to search the car

. Cosby furthe r argu es that all of the circumstance s of the tr affic stop, taken tog ether, s trongly sugge st that he was not free to leave at-13- the time Kausrequest

ed conse nt to sear ch. Cosby

hig hlights the follo wing: (1) the presence of two officer s; (2) the stop tookplace in the early morning

hours in a deserted and poorly lit locale; and (3) the office rs’ “do ubl e teaming” of Cosby at his car at the time of the request

. Cosby

ass erts that the two officers were standing on either side of his car at th

e time Kaus requested to search the car . However, the record contains no suggestion that the officers surrounded the car,

as Co sb y c laims. Thu s, Cosby ’s citati on of this c ourt’s decision in Peoplev. Gherna , 203 Ill . 2d 16 5 (200 3), is unava ilin g. The re, two police officers onbicycles positioned themselves on either side of the defendant’s truck, questioned the defendant and her daug hter about their identities, and eventually asked the defenda nt to exit the

vehicle for furth er ques tion ing. This cour t held tha t, under t he totalit y of the circumst ances, these actions constituted a show of authority to which

a reasonabl e person would feel compelled to submit. We noted that the positioning of the officers and their bicy cles prevented

th e defendant from either exiting her vehicle or driving aw a y. Ghern a , 203 Ill. 2d at 180. In his partial concurrence and partial dissent, Justice Free man
accuses the majority of rely ing exclusively o n the factors set f orth in the Mendenh

all decision in determ in ing that Cosby was not seized when he was asked

for consent

to search his car. The dissent quotes

our decision in Luedemann , where we said that the Mendenh all factors “ ‘are not exhaustive and t hat a seizure can be found on the basis of other coercive pol ice beh avior that is similar to the Mendenh all factors.’ ” Slip op. at 27 (Freeman, J., concurring in part and dissenting in part, joined by Kilbride and Burke, JJ.), qu oting Luedemann
, 222 Ill. 2d at 557. The dissent observes that we noted other factors in addition t o those s et forth in Mendenh all that may indicate a seizure of the occupants “of a parked ve hicle.” Luedemann noted that cour

ts have developed additional rules that are applica ble to “police approaches of

occupants of parked vehicles.” Luedemann
, 222 Ill. 2d at 557. Those factors include boxing the vehicle in, approaching it

on all sides by many

officers, pointing a gun at the suspect, and ordering the suspe ct to place his or her hands on the steer ing wheel, o

r the use of flash ing lights as a show of aut hority

. Luedemann , 222 Ill. 2d at 557.-14- The additional factors, however, only apply to situations where police approach a

parked vehicle, which was the case in Luedemann

. The fact tha

t Cosby ’s car w as parked on the sid e of th e road a

fte r Kaus effected a traffic stop does not make the additional factors applicable. Howeve

r, even w ere thos e factors to be applied, it is clear that only one of them–flashing lights–is present in Cosby’s case. The

o fficers here did not box Cosby’s car in; both office rs’ cars wer e locatedbehind Cosby’s car. His car was not approached on all sides

an d t here were two officers, not many . There is no evidence that either officer pointed a gun

at Cosby and no evidenc e that Cosby was ordere d to place

his hands o n the stee

ring wh eel. The d issent complain s that, by focusing on the Mendenh

all factors and by not considering

the additional factors set forth in Luedemann
, the majority

leaves the impression that the Mendenh all factors are the exhaustive factor s for det ermining whether a person is seized within the meaning of the fourth amendment. The dissent is concerned that

our relian ce up on the Mendenh all factors “calls into question the continued viab ilit y of our ana lysis in Luedemann , a unanimous decision that is less than two years old.”Slip op. at 30 (Freeman, J., concurring in part and dissenting in pa rt, j oined by Kilbride and Burke, JJ.). It is true tha t the Mendenh all factors are not exhaustive and that a seizure ma

y be found on th

e basis of other coercive police conduct similar to the Mendenh

all factor s. Luedemann , 222 Ill. 2d at 557

. Howeve

r, we not e that Luedemann itself addressed the effect that use of the Mendenha ll fac tors has on the analysis of w hether a seizure occurred. W e noted that this court, in Murray , adopted the factor s, reviewed each of the factors, found that they wer e absent, and conclude d tha t no seizure had occurred. Luedemann , 222 Ill. 2d at 553 -54. In addition, Luedemann noted that this court in Peopl e v

. Smith
, 214 Ill. 2d

338, 353-54 (2005), relied on the absence of the Mendenh all factors to co nclude t hat no seizure had taken place. Luedemann , 222 Ill. 2d at 554. We further observed: “Indeed, Mendenh

all itsel f used an analy sis based on the absen ce of Mendenh

all factors. The lead opinion listed th e four fa ctors, noted their absence, and then concluded that no seizure had occurred. [Citation.] From the very minute the Mendenh all factors were create d, courtshave use d their absence to determine that seizures had not occurred.-15- Even in the absence of cases such as Mendenh all
, Murray
, and Smith , it would seem self-evident that the absence of Mendenh all factor s, while not necess arily conclusi ve, is highly instructi ve. I

f those factors are absent, that means that only one or two officers approached the defendant, they displayed no weapons, they did not touch the defendant, and they didnot use

any lang uage or tone of voice indicating that compliance with th

eir requests was compelled. Obviously, a seizure is much les s likely to be found whenofficers approach

a per so n in such a

n inoffe nsive man

ner.” ( Emphasis in original.) Luedemann , 222 Ill. 2d at 554. Despite the absence of any

of the Mendenh

all factors in Cosby’s
case, the disse

nt express es the belief that we must loo

k to the tota

lity of the circumstances to determine whether Cosby was seized at the time Kaus ask

ed him for

conse n t to searc

h his car . This cou

rt in Luedemann addressed a similar contention which had been made by the appellate court in that case:

“The appella

te court believe d that, because Mendenh all

s tat ed that courts should look to the totality of the circumstances in determining whether a seizure had occurred, the court must conduct a ‘pra ctic al, rea listic’ inq

uiry to determine if a reasonable person would have fe lt free to leave and that the c ourt should not focus on rigid, technical rules such as the Mendenh

all factors. [Citation.] The problem with this v iew is that, immediately after Mendenh all said that a per son is s eized if ‘in view of all of the circumstances surroundi ng the incident, a reasonable person would have believedthat

he was not free to leave’ [citation], it elaborated

on how cour

ts are to make that determination. The lead opinion listed several factors that are g e nerally indicative of

a seizure, said that in the absence of s ome such evidence otherwis e inoffen si ve c ontact be tween a member o f the publ

ic and the police is not a seizure, and then concluded that no seizure had occurr

ed beca use those fa

ctors we re not pr esent. [Citation.] This cour

t expressly

adopted t

hose factors in Murray

. The ‘inview of a ll the cir cumstanc es’ lang

uage mu st be r e ad in conc ert with, not in oppos ition to, the factor s. [Citation.] Th

e facto rs illustra te what type

of police conduct-16- would give a reasonable person an objective reason to believe that he or she was not free to leave or was not free to decline an officer’s requests.” Luedemann , 222 Ill. 2d at 554-55. The reality

in Cosby’s case is that none of the Mendenh

all factors

are present. Therefore, the dissent’s insistence that Cosby was seized is not supported by the rec ord. The dissent fa

ults the ma

jority for not c iting thiscourt’s decision in Bunch , which the dissent vie w s as similar to Cosby’s situation. However, in B un ch , the defendant was removed from the ca r and directed to stand at

the rear of

the car alongside the handcuff ed driver. The officer stood a

f oot away from the d

efenda nt and shined his fla shli gh tin the def

endant’ s face, while ask

ing him qu estions. T

his court consider ed the of ficer’ s actionsto be coerci ve in natu re and to constitute a show of authority, such that, eve n though the traffic stop had come to an end, thedefendant was seized anew. Bunch , 207 I ll. 2d at 19- 20. The facts in Bunch are not at all analogous to those i n Cosby’s case. Thus, Bunch provides no authority for the dissent’s conclusion that Cosby was seized at the time

Officer Kaus requested permission to search. The dissent a

lso cites t his court’s decision in Brownlee , which it contends supports its conclusion. Ho weve r, Brownlee is no more applica ble than Bunch

. In Brownlee , after the driver had been handed back his paperwork by

one of the two officers and had been told that

no ticket would be issued, both o fficer s, who were on opposite sides of the vehicle, stood at their stations, saying nothing. After about two minutes had elapsed, the officer standing ne xt to the d rive r’s door askedfor permission to search the vehi cle. A fter asking whether he had a choice, the driver consented. This court held that the offic ers’ actions c onstituted

a show of

authority and that a

reasonable person in the driver’s position wou ld not have felt free to leave. Thus, the driver and his passengers were

subjected to a seizure. Brownlee , 186 Ill. 2d at 520-21. Here, the record

shows only that Office r Kaus approached Cosby’s vehicle, returned his paperwor k and aske d for con sent to search. There is no indication in the record that Kaus waited for any particular period of time before asking for conse nt. Thus, Brownlee is not analogous for two reasons–the record does not support any inferencethat both officers flanked Cosby ’s vehic le and there was no-17- show of authority like that in Brownlee
, where both officers flanked the vehicle and

waited f or two minu

tes befo re askin g for c onsent to search. The dissent also criticizes our rejection of Cosby’s argument that O fficer Kaus extended the tr affic st op beyond its law ful purpo se because he a sked for cons ent to sea rch nea rly simultane ously

with returning Cosby’s identification and proof of insurance. The dissent notes tha t, during argument on Cosby ’s motion to suppress, the prosecutor

told the circuit court

that Kaus “asked for consent and got the consent a

lmost immedi ately

as he is ha

nding the citation t o th e d efendant.” Slip op. at 22 (Freeman, J., concurring in par t an d dissenting in part, joined by Kilbride and Burke, JJ.). Arguments, of
course, are not evidence. The prosecutor’ s statement was an attempt to answer defense counsel’s citation of Brownlee to the court as being similarto Cosby’s case. Counsel had a rgued that theaction of Officer Kaus in calling for

ba ckup without any rea sonable suspicion of criminal ac ti vi ty was essentially a show of a uthority by

Kaus indicating to Cosby that he did not have the right to leave and that he must consent to the search . The pro secutor ’s statem ent was, at most, his own inter

pretatio n of matte

rs conta in ed in the p olice

repo rt. We do not know what is contained in the police report because it is not in the record on appeal. However, we do know that, at the trial, no testimony was elicited on direct or cross-examination as to the timing of Officer Kaus’ request for c onsent to search as it related to the returning to Cosby of his paperwor k. Nothing in Kaus’ testimony gives rise to any

inference one way

or the other. Accordingly , to the extent the dissent’s conclusions about the duration of the traffic stop and Cosby’s alleg ed seizure depend on the belief that Off ic er Kaus simultane ously

request ed conse nt to search

as he was handing Cosby his pap erwork, they

are unsu pported b y th

e recor d. For a ll these

reasons , we res pectfully d isagree with the

dissent’sconclusi ons. Ac co rd in gl y, applying the principles of Brownlee and Men denha ll
, we conc lude that Cosby was not se

ized and th at his consent to sear ch his car was therefore voluntary . The trial court’s decision deny

ing Cosby ’s motion to

suppressw a s theref

ore not in

e r ror. Because no error occ

urred, we need not consider the application of plain e rror to th is appea l.-18- People v. Mendoza, No. 102584 Ini ti al ly, we note th at Mendoza has not fi led an ap

pellee’ s bri ef in th i s court. Nonetheless, we will decide the merits of this appeal under the principles set forth in Fi rst Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133 (1976) (w here the record is simple and the claimed errors are such that the re viewi ng
c ourt c an decide them without the assistance of an appellee’ s brief, the court should address the merits of the appeal). The trial court here applied the Go nza lez analy sis to the f acts surrounding the traffic stop of Mendoza’s car and gr anted Mendoza’s motion tosuppress

. While the a ppellate court ag reed wit h the res ult reached by the trial court, the a ppellate court disagre e d as to the applic ation of Gonzalez to the facts of the case. The appellate c ourt concluded

that, by its very

terms, Gonzalez applies only to police questioning during a traff ic stop. Th

e court n oted th at Gon zalez involved police questioning of a passenger dur ing the traf

fic sto p, whereas in the present case, the traffic stop had c oncluded

prior to Weber’s asking Mendoza for perm issi on to sear

ch his ca r. Thus, according to the appe llate court, the proper inquiry is whether Web er’s que stions amounted to a second seizure. The court opined that the prope r analy sis to apply

to that inqu

iry is the one set forth by this court in Brownlee . The cour t then conc lude d tha

t Mend oza was seized and the evidence recovered fr om his car

must be suppressed. Mendoza , 364 Ill. App. 3d at 574. It is clear that the traff

ic st op of Mendoza’s car had come to an end prior to t he que stioning of Mendoza by Weber . In addition, we notethere is no evidence that the officers unreasonably prolonged the traffic stop bey ond the time

require d to fulfill its initial purpose

. Therefore, we will apply the Brownlee analy sis to Mendoza’ s appeal

. The State argues that Mendoza was not seized when Weber asked him if he had any

thi ng il legal in his car

and requ ested co nsent to search. According to the State, the traffic stop ended when Weber returned Mendoza’ s d river’s license and insurance car d to him and gavehim a verba l warning. At that point, Mendoza was no longer seized and he was free to leave. The State note s Mendoza’ s refusa l to consent to a search of his car in support of its argument that

Mend oza
was not restrained by Webe r’s questions. The State further notes the absence of any of the Mendenh all factors as suppor

t for its argume

nt.-19- There is no question that the initial stop of Mendoz a’s vehicle

was support ed by probable c ause. The officers observed that Mendoza’s car had

a tinte d rear license plate cover and a bandana hanging from the rearview mirror, which the off icer s believed obstructedMendoza’s view. As noted by the appellate court, these are violations of the

traf fic l aws. Once

We ber r eturned Mendoza’s driver’s license and

insurance card to him, the purpose of the traf fic stop was concluded. At that point, Weber asked Mendoza if there was anything i lle gal in his car, to which Mendoza replied that there wa s not. Weber then reques ted cons ent to sear ch Me ndoza ’s ca

r. Me ndoza refused. Weber then advised Mendoza that he was fre e to leave. The appellate court, in finding that Mendoza was seized, focused

on the following factors: (1) it was late at night; (2) the officers used

a flanking maneuver in approaching Mendoza’s car the second time; (3) the offic ers wer

e dressed in dark, special ope rations u niforms with the word “POLI

CE” stenciled on them

in large white letters; (4) the office rs’ guns were visible; and

(5) Wiencek s hined his f

lashlight into Mendoza’s car. In view of the se circumstances, the appellate court concluded

that a reasonable person would not have felt free to leave. Mendoza , 364 Ill. App. 3d at 578. As we have noted, the Supreme Court set forth in Mendenhal l certain factors the presence of which w ould tend t o indicat e that a seizure had occurred. None of these factors are

present in Mendoza’s

case. Again, these factors are: (1) the threatening presence of several office rs; (2) the display of a

weapon by

an officer; (3) some physica l touching of the per son of the citizen; and (4) the use of languag e or tone of voice

in dicatin g that c omplianc e with the office r’s req uest might be compelled. Mendenh

all , 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Here, there were only

two officers present, no t s everal. The appella te court not

ed th at the officers’ guns were visible. Howe ver, it is well kno wn that police officers carry guns. The mere fact that they do so does not mean that they have ther eby display

ed the guns in th e m an ne r c on te mp la te d b y Mendenh all . In any e vent, we

note that W iencek testified he did unholster his gun when he thought he

saw the butt of a gun on the floorboard of Mendoza’s car. However, he testified that he did not display the g un to Me ndoza. Neither officer testifi ed to any phy sical touching of Mendoza’s person.-20- Fi na ll y, there is no suggestion that either o fficer

spoke to Me

ndoza in such a manner

as t o c on ve y t o him the need for c omplianc e with Weber’s request

t o search the car . The abs ence of this last f

actor is buttre sse d by t

he fact that Mendoza refu sed Weber ’s reque st to search, indic ating

that M endo za

didnot feel

the need to comply

with that request . The abs ence of all th e Mendenh

all factor s strong ly sugge sts that Mendoza was not seized for fourth amen dm ent purposes

. The appella

te cour t emphasized the fact that Webe r did not te

ll Mend oza that he was free to leave after

returning his dri ver’s lic ense and insurance card to hi m. As we ha ve state d, howeve

r, the fourth amendment

does not require that an officer do so. See Robinette
, 519 U.S. at 35, 136

L. Ed . 2d at 352 , 117 S. Ct. a t 419. The

appella te court attached somesignific ance to t

he fact that Wienc ek shined

his flashlight into Mendoza’s car. However, we have previously r

ejected

an argument

that shining a fla shlight in to a car at night is a facto r to be consider

ed in dete

rmin i ng whether a seizure occurred. See Luedemann
, 222 Ill. 2d at 5 60-61 , citi ng Texas v. Brown , 460 U. S

. 730, 739-40, 75 L. Ed. 2d 502, 512, 103 S. Ct. 1535, 1542 (1983). We reject the appellate court’s conclusion that Mendoza wa s seized by the offic ers’ wor

ds and actions follo wing the return o f his driver’s licen se and insu rance ca rd. Acc ordin gl y, t he subsequent discovery of the gun, the second stopping of Mendoza’s car, and the office rs’ search

of the ca

r did not vi olate Me

ndoza’s f

ourth amendme nt right s.

CONCLUSION For the reas ons stated, in the matter of People v. Cosby, No. 100681, we reverse the judgment of the appellate court and affirm the judgment of the ci rcuit court. I

n the matte

r of Peopl e v. Mendoza, No. 102584, we reverse the judgment of the a ppe ll ate court, vacate the order of the circuit c ourt, and

remand t he cause to the cir cuit court for further procee dings.

No. 100681–

Appellate court judgment reversed; circuit court judgment affirmed. No. 102584–

Appellate court judgment reversed;-21- circuit court order vacated; cause remanded. JUSTICE FREEMAN , concur

ring in part anddissenting

in part: In these consolidated

cases, d efenda nts were initially stopped by law enforc ement of

ficers f or minor tr

affic la w infractions. At c ertain points during t

heir enc ounters with the off icers, however, defenda

nts

were asked to c onsent to havi ng their vehicles searched for contraband, and, in the

case of defenda nt Cosby , to additio nally

agree to a searc h of his pe

rson. I n both c ases, the majority holds that the defenda nts were not seized

b y la w enfor cement o fficer s at the tim e they were requested to consent to a search and, therefore, the p rovisions of the fourth amendment were not implicated. I strong l y dis agree with the ma

jority that Cosby

was not se

ized at the

ti me h e
was asked to allow a consent search, as no rea sonable person in his position would have felt free to terminate the encounter. It is my view that in Co sb y’ s cas e, the majority’s holding eviscerates the pr otections afford

ed to citize

ns under t

he fourt h amendme

nt b y diluting the test used to such an extent that it no longer has me aning. In addition, I am seriously conce rned that the majority–rather than providing needed guidance for our be nch and bar

withrespec t to this importantarea of

the law–has created additional confusion by failing to ha rmonize ou

r own precedent. Inste ad, the ma jority sends mi xe d messag es, leaving

our lowe r court ju dges and practitioners with the unenviab le tas k of disce

rning th e proper rules to a pply . It isfor this

reason that although I join the majority ’s ultimate holding that defendant Mendoza was not sei zed at th e time he was asked for consent, I cannot ag

ree with the method of analy sis employ ed to arrive at that conclusion.

I. BACKGROUND I begin my se

parate opini on with a short recitation of key background

facts gleaned from the rec ord in People v. Cosby, No. 1 006 81. I am compelled to do so because several pivotal facts are ab se nt fr om th e o pi ni on of th e m aj or it y. Cosby filed a motion to supp

ress evidence and, at the suppression hearin g, both the pr osecutorand defense counsel stipulated to the admission of the police report written b y Pla infield police officer-22- Steven Kaus. Although counsel at the hear ing desc ribed this report as being two pag es in leng

th, the ma jo r ity c orrect

ly o bservesthat it is notcontained in the reco rd on appeal. However, the transcript of proceedings at the suppression hearing sheds light on the content of this report th

rough th e argu ments made by both parties on the motion. Defens e counsel n oted that the repo rt indica ted that O ffice r Kaus stoppe d defend ant fo r havi ng a bur ned-o ut rear regist ratio n ligh t

. Defendant produced a speeding ticket in lieu of a

license, as well as

an insurance card. Kaus ret urne d to his squad car, found that defendant’s license an d in surance were valid, confirmed ther e were
no outstanding warrants for defendant’ s arrest, and radioed for a backup unit to come to the scene. Defense counsel stated that “[i]n his report [Kaus] indic ates tha

t he did tha

t [call ed for backup] for a possible consent sear ch.” When the second officer arrive d at the

scene of the stop, Kaus returned to defendant his ticket and insurance card and ga ve defe ndant a written warning citation. Defense counsel noted that “now [defendant] has two police vehicles there.” Kaus then asked for and received consent to searc h defendant’s car and discovered what he believed to be drug paraphernalia. The prosecutor did not quarrel with defense counse l’s recitation of the facts as set forth in the police report. The prosec utor did further stipu late, however, that “the report will indicate to the court the officer askedfor consent

and got the consent almost immediately as he is handing the citation to the defendant.” The t ria l court subseque ntly denied de

fendant ’s motion to

su ppre ss; no rationale, however, wa s provide d for this r uling. T he repor t of proc eeding s in the trial court on September 16, 2002, reveals that the entirety of the trial co ur t’s statement with respect to its ruling on defendant’s suppression motion consists of the following single sentence: “Show

cause coming on on [ sic ] the Court’ s decisio n as to th e motion to suppress, show motion to suppress is denied.” Defendant’s case proceeded to trial, where Officer Kaus provided testimony t hat offere d addition al detail s about hisencounte r with defenda nt. Kaus testified that he was on patrol around 1:30 a.m. and

was alone in a marked squad car when he observed defe ndant driving witha burned-out rear registration lig ht. He stopped defendant on the shoulder of a

two-lane road, which had little or no traffic, as well as poor li ghting conditions with no overhead lights. Kaus stated that-23- during the entir

e time of the stop, h

is squad c ar not onl

y ha d its

o verhead flashing blue and r

ed light s activa

ted, but he

also had h

is spotlight turned on and directed at defendant’s ca r. He approached the vehicle and a sked defendant for his driver’s license and proof of i nsurance

. Defendant complied. Kaus returned to his squad car and radioedfor a backup officer to come to the sce ne becaus e Kaus thought there would be a possible consent search. It w as Kaus’ customto stay in his vehicle until the backup officer arrived. I

t took approx im ately

two minutes for him to check defendant’s identification and ins ur ance and to call for backup, and he w aited app roximately

an extra f

ive minute s for his b ackup to a rriv e. Th e secondofficer–Officer Klima–pulled his squad car behind Kaus’ car. It was only after Klima arrived at the scene that Kaus the n exited his vehicle and reapproached

defendant’s car. Kaus handed defendant’s document s back to him and asked defendant for

consent t o search his vehicle. Defendant agreed, a nd Kaus directed him to exit his car and stand at the rear

passenger side of the vehicle. Prior to conducting the search of the car, however, Office r Kaus further

asked defendant

if he would also consent to a sear ch of hi s person. Defendant agreed and removedthe cont ents of his pocke ts, includ ing a pa ck of cig arettes

. The officer examined defendant’s effects and, finding nothing suspiciou s, retur

ned them t

o him. Kaus testifie d t hat he then proceeded to conduct a sea rch of defendant’s vehicle. Accordingto Kaus, defendant remained near the

rear passenger side of the car in the c ompany of Office r Klima while Kaus searched the vehicle. Kaus found wha the believed to be a crack pipe in the car’s middle console. Defendant was plac ed under

arrest for possession of drug paraphernalia and tra nsported to t he pol ice station. There, Cosby

again e mp tied his pockets–including the cigar ettes– a nd placed t

hem in a tr

ay . At the time

Cosby was to pos t bond and leave the station, Kaus completed an evidence report o f Cosby’s personal items and found four rocks of crack cocaine in the cigar ettepack. Defendant was then charged with unlawful possession of a controlled substance, an offense o f w hich he w as subseq uently fo un d g ui lt y by a ju ry. The appellate court, in an order unpublished under our Rule 23, reversed the judgment of th e trial court and vacated defenda nt’s conviction. The court held, inter alia , that pursuan t to this court’s-24- deci sion in People v. Gonzalez , 204 Ill. 2d 220 (2003), Kau s ’ questioning of defendant with respect to the consent searc hes

unreaso nably

prolonged the duration of the stop and r esulted in defendant’s beingillega

lly detained at the time he provided consent to the search. I n turn, the court held that the consent, the resulting search and the su

bsequen t arrest were ta inted, and the fru

its sh o uld have been suppressed.

II. AN ALYS IS The facts presented in these consolidated cases g ive rise to t w o threshold q uestions o f law: whether de fendant s were se

ized within th e meaning of the fourth amendmen t when the y w ere re quested t

o consent to searches by

the officers, and, if so, whether that detention

was unl awf

ul . It is my

view that in the case of defendant Cosby , the

answer is y es. Howe

ver, bec ause

the major ity o pinion fa ils to set f orth the proper analy

tical fr amework to be empl oyed in answe ring the se questions
, I am compelled to doso prior to discussing the application of these principles to the facts presented.

A. Princip les of Ana

lys is It is well settled that

in revie wing a trial court’s ruling on a motion to su pp re ss ev id en ce , w e a pp ly t he two-part standard of review set forth by the Supreme Court in Ornela s v. Unit ed States
, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 165 7, 166 3 (1996). People v. Luedemann , 222 Ill. 2d 530, 542 (2006). Accor d in gl y, a trial court’s findings of historical fact should be reviewed only for cle ar err

or, and a reviewing cour

t must g ive due weight to any infere

nces dr awn fro m those facts by the f act finder. Luedemann
, 222 Ill. 2d at 5 42. In ot her wor ds, gr eat defer ence is afforded to the factual findings made by the trial court, and,

ac co rd in gl y, they

will be reversed only

if they are against the manifest weight of the evidence. People v. Sorenso n , 196 I ll. 2d 425, 431 ( 2001). A reviewing cour t, howeve r, rema ins free to undert

ake its

own assessment of

the fac ts in rela

tion to the i ssues and

may draw its

own conclusions when de cidin g the proper relief to be g ranted. Luede mann , 222 I

ll. 2d at 54 2. There

fore, the trial c ourt’s ult

imate1 I note tha t the maj ority, in its o pinion, conced

es that “[t]he t

rial cou rt denied the m

otion to suppre ss, but

did no t explain its reasoning.” S lip op. at 2.

-25- legal ruling a s to w hether suppression is warranted is reviewed de

novo

. Luedemann , 222 Ill. 2d at 542-43. As stated, in the mat terat bar, although the trial court denied Cosby ’s suppression motion, it failed to make any specific fact ua l findi ngs or

credibi lity

determin ations in su

pport of t his legal h oldi ng. Instead, the trial

court simp ly s ta ted that defenda nt’s “moti on to suppress is denied.” 1 We have previously c autioned that “for [the Ornelas two-par

t] standar d of revi ew to function as it is intended, trial cou

rts must exerc ise their

responsi bility to make factual findi ngs whe n ruling on motions to

suppress

. Reviewing courts should not be required to surmise what f actual findings that the trial court made. I nstead, the tria l court should make clear any

factual findings upon

which it is relying. It is o nly

through this sy nergy betw ee n the trial and reviewing courts that appellate courts can develop a uniform body of precedent

to guide law enfo rcemen t office rs in their d etermi nation of whether their actions may violate the constitution.” In re G.O. , 191 Ill. 2d 37, 50 (2000). Here, it is appar

ent that th e trial c ourt did

not heed our admonishment in G.O. with resp ect to se

tting fo rththe factua

l finding s supporti

ng its d ecisi on on defendant’s motion to suppress. It is therefor e unclear upon what factual basis the trial court made the l e gal determination that defenda nt’s suppr ession moti on should

be denie d. I n ote that in upholding the trial court’sjudgmen t, the majo

rity relies up on certa

in aspectsof the factual record–facts not specifically se

t forth by the trial court in its ruling on the suppression motion–to conclude that Cosby

wa s not seized at the time Officer Kaus asked him to consent to a search. I am in disagr

eement wit h this conc lusion bas ed upon my view that the record fairly and reasonably

leads to the contrary

legal conclusion that Cosby was unlawfully seized at th e moment Kaus requested that defendant allow a consent sea rch. It is well se ttled that a person is seized by the

police and entitled to challenge the actions of the office rs under the protection s of th e-26- fourth amendment when the officer, “ ‘by means of phy sical force or show of authority,’ ” te rminates or restrains his freedom of movement

. Florida v. Bostick , 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 ( 1991) , quot ing Terry v. O hio , 392 U.S. 1
, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16 (1968). Because a police

officer may

make a seizure solely by

a show of authority and without the use of physical f

orce, “there needs to be

sometest for telling when a seizure occurs in respon se to au th or it y, and when it does not.” Brendlin v. California , 551 U.S. ___, ___, 168 L. Ed. 2d 132, 138, 127 S. Ct. 2400, 2405 (2007). The United States Supreme Court recently r

eaffirmed in Brend lin that this test ha s its roots in Justice Stewart’s principal op inion in United States v. Mendenh all
, 446 U.S. 544, 64 L. Ed. 2d 497, 100S. Ct. 1879 (1980), wherein he wrote

that “ a s eizure occurs if ‘in view of all of the circumstanc es surround

ing the incident, a reaso nable pe rson woul d have believed that

he was not free to leave.’ ” Brendlin , 551 U.S. at

___, 168 L. Ed . 2d at 138, 1 27 S. Ct. at 2405, quot ing M en denhall
, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Brendlin noted that subsequent to Mendenhal l , “the Court adopted Justice Stewart’s touchstone [citations] but added that when a person ‘has no desire to leave’ for reasons unrelated to the police pr esence, the ‘coerciveeffect of the encounter’ ca n be measure d bet ter by asking whether ‘a reasonable person would feel fr ee to decline the offic ers’ request s or other

wise ter minate the encounter.’ ” Brendlin , 551 U.S. at ___, 168 L. Ed. 2d at 138 , 127 S . Ct. at 240 5, quo ting Bostick , 501 U.S

. at 435-36, 115 L. Ed. 2d at 399, 111 S. Ct. at 2387; see als o People v. Luedemann , 222 Ill. 2d 530, 548 (2006). As stated, in

conducting this inquiry , the United States Sup reme Courthas reaffirmed that a court must consider “ ‘ all of the circumstances surrounding the incident’ ” ( Brendlin
, 551 U.S. at ___, 168 L. Ed . 2d at 138 , 127 S. Ct. a t 2 4 05, qu otin g Mendenh all , 446 U.S. at 554, 64 L. Ed . 2d at 509 , 100 S. Ct. at 1877), meaning that the court “must asse ss the coe

rcive effect o f police

conduct t

aken as a whole.” Lue dem ann , 222 Ill . 2d at 555 n. 6, cit ing Michigan v. Chesternut
, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct

. 197 5, 1979 (1988). The Mendenh all Court set forth examples of circumstances that

may indicate a

seizure, including the “threatening presenceof several officers, the display of a weapon b y an officer,2 According to Pro fessor LaFave, th ese examples hig

hlight “why vehic le stops are g enerally viewe d as sei zures while p edestria n encou nters ty pically

are not.” 4 W. LaFav

e, Search & Seiz ure §9. 4(a), at 436- 38 (4th ed. 20 04).

-27- somephy sical to u ching of the person of the citizen, or the use of langua ge or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenh all , 446 U.S. at 554, 64 L. Ed . 2d at 509 , 100 S. Ct. a t 1877 (pr

incipal o p.). We have recently he

ld, however, that the factors set forth in Mendenh

all “are not exh austive and that a seizure can be found on the basis of o the r coercivepolice be

havior th at is simila

r to th e Mend enhall

factors.” Luedemann , 222 Ill. 2d at 557; see also Peoplev. Bunch , 207 Ill. 2d 7, 20 (2003) (absence of the Mendenh all factors are

not conclusive,

as an officer’s show of authority may be man ifested in other way s). Our opinion in Luedemann a do pted several examples set forth by Professor LaFave in his fourth a

mend ment treatise

–in additio n to those listed in Mendenh

all –that may be indicative of a seizure of an individual who is appro a ched by off icers while seated in a parked vehicle: “ ‘boxing the car in , approaching it on all sides by many office rs, pointing a gun at the

su spect and ordering him to p lace his hands on the ste ering w

heel, or use of fl ashing l

ights asa sh o w of authority.’ ” Luedemann , 222 I ll. 2d at 557 , quoting 4 W. LaFave, Search& Seizure

§9.4(a) , at 434-4 5 (4th

ed. 2004). 2 The analysis of whether an individual is seized for purposes of the fourth amendment requires an objective evaluation of the police conduct

in question and does not turn upon the subjective perception of the person involved. Luedemann , 222 Ill. 2d at 551. It is well settled that a traffic stop e n tails a seizure within the meaning of the fourt h amen dment “ ‘even thou gh the purpose of the stop is limited and the resulting detention quite brief.’ ” Brendlin , 551 U.S. at ___, 16 8 L . Ed. 2d at 138, 127 S. Ct. at 2406, quoting Delaware v. Prouse , 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S. C t. 1391, 1396 (1979); see also Bunch , 207 Ill. 2d at 13. Vehicl e stops are sub

ject to the fourth amendment’s requirement of

reasona bleness, which is analyzed under Terry prin ciples. Bunch , 207 Ill. 2d at 13-1 4; Gonzalez , 204 Ill. 2d at 228. This involves a dual in qu ir y: “whether

the offic er’s action was ju stified a t its inception,” and “whether it was reasonably related in scope to the circumstances3 As the m ajority notes , our decision in Harris partially overruled Gonzalez to the e xtent th at Gonzalez held that the reasonableness of the traffic stop m

ust–in a ddition to its durati on–be judged by whether the officer’ s conduct altered the fundamental natu

re of the stop. Harris
, 228 I ll. 2d at 244. It isclear, howev er, that Harris preserves the

duration prong a s the focus of the Terry scope inquiry.

-28- which justified the interference in the first place.” Terry , 392 U.S. at 19-20, 20 L. E

d. 2d at 90 5, 88 S. Ct. at1879. As w e rece ntly held in Peoplev. Harris , No. 103796, slip op. at 16 (March 20
, 2008), the scope prong of Terry

examines the duration of the de tention , and requires that it

not be “un

reasona bly prolonged.” 3 See also Brendlin
, 551 U.S. at ___, 168 L. Ed. 2d at 138, 127 S. Ct. at 2406. I t is also wellse ttled that a seizure that is lawful at its inception can nevertheles s viol ate the fourth amendment “if the manner of execution u n reasonably infringes interests protected by the constitution.” Illinois

v. Caballes , 543 U.S. 405, 407, 160 L. Ed. 2d 842, 846, 125 S. Ct. 834, 837 (2005). For example, “[a] seizure that is justified solely by

the interest in issuing a warning ticket to th e driver can bec ome unlaw ful if it is p rolonged bey ond the time

reasona bly require d to complete that mission.” Caballes , 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837. In the matters at bar, no issue existsconcer ning the lawfulne ss of the initial stops of the vehicle s. Rather, these appeals concern the constitutional propriety of the c onduct of the officers following the initial stops. Where an officer asks a motorist questions about contraband

or consent to search

the vehic le after

a valid detention, the inquiry is whethe

r th e consent to search was valid, which, in turn, rests upon whether the consent was voluntary. Ohio v. Ro binette , 519 U.S. 33, 40, 136 L. Ed . 2d 347, 354, 117 S. Ct. 417, 421 (1996).

“ ‘[V]oluntariness is a question of fact to be dete

rmined, f rom all of the circumstances.’ ” Robinette , 519 U.S. at 40, 136 L. Ed. 2d at 354, 117 S. Ct. at 421, quot ing Schnec kloth v. B ustamonte , 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2 059 (1973 ). This in qu ir y, theref

ore, dov etails withthe quest ion of whe

ther the motorist

was seized at t

he time the

office r asked t h e q uestions and whether that seizure was reasonable. A consent obtained d urin g an illegal detention is ordina

rily ineffe ctive to ju stify

an other wise in v alid-29- search: “stateme

nts g iven during a period of illegal detention ar e i nadmissible, even though voluntarily given, if they

are the product of the illegal detention and not theresult of an independent act of free will.” Florida v. Royer , 460 U.S. 491, 501, 75 L. Ed. 2d 228, 238-39, 103 S. Ct. 1319, 1 326 (1983 ) (plura lity op.); see als o Bos tick , 501 U.S. at 43 3-34, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386 (if con sen t

was given during the course of a n unlawful seizure, the results of the search must be suppressed as tainted fruit).

B. Application to the Cases at Bar In its opinion, the majority ’s a nalysis as to both Cosby and Mend oza centers exclusively

upon the four Mendenh

all factors. The court holds that none of the four factors are pres ent in either of defenda nts’ cases and summarily

concludes that def

endants were not seized at t he time they were

asked for consent to submit to a search. However, as I have just noted, not only has the United States Supreme Court in Brendlin

reaffirmed that

a court m ust asses s “all

of the circumstances surrounding the incident” to deter mine whether

an individual is seized, but this court ha s also re cently and unan imously held in Luedemann that the Mendenh all factors are not

exhaustive

in determining whether

a defendant is seized fo

r purpose s of the f

ourth amendm ent. It is o nly

in respon se to the c oncernsraised in this separa te op in io n t ha t t he ma

jo ri ty a cknowledges that Luedemann held that the Mendenh

all factors are

not exhaustive and that a seizure can be found on the basis of other coercive police behavior that

is similar to the Mendenh

all factors. Slip op. at 14-15. Ne verthel ess, the majority states that th e “additional factors” noted in Luedemann “only apply to situations where police approach a parked vehicle”and that “[t]he fact that Cosby’s ca r was parked on the s ide of the road after Kaus effected a traffic stop do e s not make the additional factors applicable.” Slip op. at 14. I disagree

. Luedemann determined that the analytical framework for

assessing whether an

individual is “seized” within the meaning of the fourth amendment differ s depending upon whether that per son is walk

ing down the stree t a s a pedes t rian or whether his “freedom of mo vement is r estrained by

somefa ctor independent

of police conduct.” Luedemann
, 222 Ill. 2d at 550. I n the former instance, the corre ct test i s to determine whether, in view of all the circumstance s, a reasonable person would feel “f ree to leave.”-30- Luedemann
, 222 I

ll

. 2d at 550. However, in the latter instance– i.e.
, where a person’s movement is restrained by a

factor independent of police conduct such as here, w here a person encounters a law enforcement

officer while the per son is sea ted in a c ar–the “ free to leave” test is inappropriate. Rather, the “ ‘appropri ate inqu iry is wh ether a reaso nable pe

rson woul d feel f

ree to decline the

offic ers ’ request s or other

wiseterminate the encounter.’ ” Luedemann , 222 I ll. 2d at 550, quoting Bostick , 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. at 2387 (apply

ing standard to

persons seated

on a bus boarded by law enforcement officers). I t is in distinguishing an encounter betweenofficers and a pedestrian as opposed to an encounter between officers and a pe

rson sea ted ina car tha t Luedemann underscored that different analy

tical questions are presented. Where the latter factual situation i s presented, Luedemann cited with approval Professor LaFave’ s four examples–in addition to the Mendenh all factors–as p art of th e analysis in deter

mining whether a particular defe ndant wa s seized. Despite the fact that it is apparent that the Luedemann analy sis applies to the facts in the matter a t bar bec ause

defendant encountered the police not

as a pedestrian but rather under circumst ances w herein his “freedom

o f movement [was] restrained by some f actor independen t of police

conduct” –namely , that he w as seate d in his car–the majority now states that the ana lysis in Luedeman n is no t applica ble to Cosby’s case. The

majority reas ons tha t even thou gh Cosby was seated in his car

at the time

of the encounter, his car was parked on the side o f the roa

d as a re sult of a tr

afficstop, rather than being approached by

police when he was already parked. This narrow reading of Luedemann is un sup portable. Contrary to the United States Supreme Court’s decision in Brendlin and our recent pronouncement in Luedemann , the majo

rity ’s opinion

today leaves t he clea r–albeit incorrect–impressionthat the Mendenh all factors are the exhaustive factors for determining whether a person is seized within the meaning of the four th amendme

nt. I am c oncerned that the majority ’s analy sis

unnece ssarily

call s i nto question the continued viability of our analy sis in Luedemann , a unanimous decision that i s less than two years old. The majority compounds its analy tical erro rs by

rejecting Cosby ’s assertion that his traffic stop violated the scope prong of Terry based upon its unreasonable duration. The majority notes that Cosby4 I note that the use of flashing lig

hts as a show of au

thority is one factor specific allyse t forth in Luedemann that is indicative of a seizure. Luedemann , 222 Ill. 2d at 557.

5 Althoug h the majority attem pts to minim

ize the presence of Officer Kli ma at the scene of the stop by noting that Officer Kaus testified that Kli ma usually “handled

the tow du

ties and such,”it is we

ll settle d that it is

an officer’s objective conduct–and n ot h is subjec tive in tention s–that i s relevant to determining

whether seizure h as occurred. People v. Smi th , 214 Ill. 2d 338 , 355 ( 2005), citin g Michigan v. Chesternut , 486 U.S. 5 67, 575 n.7, 100 L. Ed. 2 d 565, 573 n.7, 108 S. Ct. 1975, 1980 n .7 (198 8). Her e, it is un dispute d that Klima a rrived at the s cene of

the traf fic stop prior to

-31- maintains that Off

icer Ka us imprope

rly treated the requ est

to search defendant’s vehicle

as if it we

re part o f the traffic

stop, bec ause, in Cosby’s words, Kaus asked for consent to search “in the sa me breath”

as he explained the warning and returned his pape rwork to him, and that this unre asonably

prolong ed Cosby ’s deten tion. The majority summarily

rejects Cosby’sassertion, stating that “the record does not support such an argument.” Slip op. at 10. I strongly disag

ree. The record

reflects that defendant

Cosby was stopped beca

use he had a burned-out

rear registration light. Offic er Kaus wrote defendant

a warning citation for this minor infraction and had no reaso nable suspicion that defendant was involved in any other

cr im in al ac ti vi ty. Neverth eless, Kaus ra

dioed for a backu p unit to co me to the scene of the stop and waitedfor Officer Klima to arrive befor e Kaus returned to defendant’s vehicle to ask for defenda nt’s consent to search hi s vehicle. Defend ant was n ot only asked fo r his cons ent immedi ately after a second police vehicle arrived at the scene and pulled up behind Kaus’ squad car, which ha d i ts flashing emergency lights and spotlight activated throughout the entire encounter, 4 but also after the presence of a second office r at the scenewas established, and while Kaus w a s in the course of returning defenda nt’s paperwork and explaining the warn

in g citat ion. Cont rary to th e majo rity’s ho ldin g, the record amply

suppor ts d efendant’s argument that althoug h the justification for the initially lawful traf fic stop h ad concluded, the seizure of defe

ndant nev erthele ss contin u ed–and, in fact, escalated throu gh an increased show of authority by virtue of the appearance of

a second p olice of

ficer a nd vehicl e 5 –at the time Kaus asked defendantKaus’ reappro aching Cosby ’s vehicle to ask

him for a consent search, and thatKlima was pre sent with defendant at the rear passenger area of defenda nt’s car immediate

ly after Kaus obtaine d Cosb y’s co nsent. It is this obj ective conduc t–and n ot a ny alleged su bjective intention s
uncomm unicated to defendant–wh ich is relevant to the analysis.

-32- to agree to allow a sear ch of hi s car absent any reasonable or articula ble suspicion for continuing the seizure. Indee d , the prosecutor’s own stipulation during Cosby’s suppression hea ring that “the officer asked for consent and g ot the consent almost immediate

ly

as he is handing the citation to the def endant,” combined

with Kaus ’ testimony at

trial, confirms that the request for defendant to allow a vehicle search was made

while def endant w as seized

as a res ult

of the traffic stop by the two of

ficers. It is well se

ttled that “an inve st i gative detention must be temporary

and l a st no longer than is necessary to effectuate the purpose of the stop.” Royer
, 460 U.S. at 500, 75 L. Ed. 2d at 238, 103 S. Ct. at 1325 (p lurality

op.); Brownlee
, 186 I

ll. 2d at 51 9. It i s again st this background that I

observ e that Ka us candid ly te stified th at his intentto ask defendant to “con sent” to a vehicle search was formulatedprior to hi s retu rning defe ndant’s documents and motivated him to call

for a backup unit–a series of events which Kaus testified caused h

im to wait in

his car f or a per iod of app

roximately five minutes until Officer Klima arrived at the scene. This period

of time–coupled with the additional few minutes Kaus testified it took him to check defendant’s documents and prepa re the warning–meant that defenda nt was de

tained f or near ly 1 0 minutes t

o rece ive a warning f or a burned-out rear registration light. I note that it is the Statewhich “ bear s the burden of showing that a seizure based on

reasona ble suspicion

was suff iciently li mited i n scope and duration to satisfy the conditions of an investigative seizure.” Royer , 460 U.S. at 500, 75 L. Ed. 2d at 238, 103 S. Ct. at 1326 (plur ality op.); Brownlee
, 186 I

ll. 2d at 51 9. In

Cosb y’ s case , the conc lusion is inescap able

t hat he rem ained seized as a result of the traffic stop at the time of the search request, even though the justification for that stop had concluded. The continue d det ention wa s of unre asonable duration, as the officers lacked reasona ble s uspicion of any illeg al activities on the part of

defendant

to continue to detain him. As-33- C aballes makes cr

yst al clea r, a seizu

re that islawful a

t i t s inception– i.e.
, here, the valid traffic stop–can never theless violate the fourth amendme

nt “ if the manner of execution unreasonably infringes interest s protected by the constitution, ” i.e.
, if the sei zure “is prolon ged

beyond the time rea sonably required to complete that mission.” (Emphasi s added.) Caballes , 543 U.S. at 407, 160 L. Ed. 2d at 846, 12 5 S. Ct. at 837. Under the facts presented, a reasona b l e perso n in Cos by’s position would not believe that the investiga tive stop had been concluded and that he was free to terminate the encounter, so long a s addition al police presence was called to the

scene and Officer Kaus was continuing to ask inve stigative questions

w hile returning defendant’s paper work and warning citation f or th e original stop. Thus
, contrary to the holding of the majority, the record clearly establish es that the

continue d dete nti on of Cosby was of an unreasonable duration and constituted an illegal seizure. The majority, however , finds that because Kaus returned Cosby ’s paperwork

to him, this automatically signaled that the tra ffic stop “came to an end,” and, therefor e, the “relevant” question is whether the actions of the officers after the conc lusion of the i nit ial stop constituted a new, second seizure of defe ndant for purposes of the fourth amendme

nt. Sli p op. at 10-11. First, as explained, I disag ree with the majority’s summary finding that the traffic stop h a d concluded

when the request to search defenda nt’s vehi cle was made. Indeed, I note that

the major

ity c ontradicts itself on t

his point within its opinion when, after

stating–as noted above–that the traffic stop had come to an end prior to Offi cer Kaus’ requ est to def endant to allow a search of his vehicle, it subsequ ent ly states that after Kaus returne d defendant’s pap erwork, “[t]here is no indication in the record that Kaus waited for any

particular period before asking for consent.” Slip op. at

19 . Seco nd, as sumi ng arguendo that the traffic stop had concluded, the majority still errs by holding that def

endant was not subject to a second seizure under the circumstances pre sented. As stated, the major

ity improper

ly tr eats the Mendenh

all factors

as the exhaustive inquiry in determining whe ther a seizure ha s occurred. I further note that in discussing the se factors, the co u rt unduly narrows their application by in terpre ting the m in an ove

rly technical manner. For example, the majority notes that one factor

to consider under Mendenh

all is the presence of

“several” officers and6 I note that the continued validity

of our decision in Bunch wa s reaffirmed in Harris . See Harris , 228 Ill. 2d at 244 n.3.

-34- states that “[i]t is c le ar *** th at the pr esence of only two offic ers, withoutmore, is not a factor that would indicate a seizure occurred.” Slip op. at 12. I que stio n whet her the majority ha s now adopted a bright-line rule whic

h stands f

or the pr oposition th a t under any circumst ances th e prese nce of tw o office

rs will never

be considered to have a coercive effect, despite our prior case lawwhich has found that defenda nts have b een seize d under th e totalit y of al l the circumstances in instances where theencounter involved only one or two officers, and not more. See, e.g

. , Bunch , 207 Ill. 2d at 19-20 (defendant

found to be “seized” during a traffic stop where defendant had an encounter wit

h one polic e offic er); People v. Gherna , 203 I ll. 2d 165, 180-81 (2003 ) ( defend ant fo und t o be “s eized ” duri ng a traffic stop when

approac hed by two offic ers); Brownlee
, 186 Ill. 2d at 520-21 (same). It is my view that this co urt’ s decisions in Bunch and Brownlee

are factua lly a nalogous to Cosby ’s case , su pport h is contention that his suppress ion mo tion should have been granted, and that the majo rity’s attempt t o distin guish these cas es is unpers uasive. Fo r example, in Bunch , this court found that the officer’ s con tinued questioning of the defendant after the purpose of the traffic stop had been concluded “prolonged defenda nt’s detention beyon d the completion of the purpose of the stop.” Bunch , 207 I ll. 2d at 17. Since the office r’s cond uct in Bunch occurred after the justification for the traffic stop ende d, this cou

rt lo oked to whether the officer’s questioni ng of t he defendant was related to the traff ic stop or supported by a separ

ate, reasonable, articulable suspicion of criminal conduct. Finding none, the court concluded that defendant had bee n
unreaso nably

seized by the

officer. 6 This is simila

r to the facts in the matter at bar, where defenda nt’s detention was unduly prolong ed to allow the arrival of a backupofficer at the scene which esca lated the show of authority absen t an y reasona

ble basis, and where Kaus continued t o question defendant after the purpose of the tra ffic stop had been concluded.-35- Si mi la rl y, in Brownlee
, thi s court held that the defendant was unlawfully

seized after

the justification for the traffic stop had ended, where the two offi cer s continued to flank both sidesof the ve

hicle after returning the motorist’s documents and stating that no citations would be is sued, pau sed for a “couple of minutes,” and then requested that

the occu pants ag ree to a consent s earch. We held

that under those circumstances, “the officers’ a ctions constituted a show of authority ,” and tha

t a reas onable pe

rson “wouldl ikely conclude that, if he or s he drove

away , then the

two offic ers would

soon be in hotpursuit.” Brownlee , 186 I ll. 2d at 52 0. The ma

jority att emp ts to distingu ish Brownlee on the basis that unlike the couple-minute delay occasioned

by the offic ers in tha

t case, h ere the re “is no indication in the re cord tha t Kaus waited for any particular period of time before asking for consent” from Cosby

. Slip op . at 19. As noted, however, this statement contradicts the position taken by the major ity e arlier in its opinion, wherein it finds that there was a break betwee n the conclusion of the traffic stop and Kaus’ request to Cosby to allow a search, and rejects precisely the same a

rgum ent it now e

mbrace s, writi ng: “While Cosb y a rgues b efore this court that there was no break between the conclusion of the traffic stop and the officer’ s
r equest for cons ent to sea

rch, we conclude that the r ecord do es n o t support such an a rgumen t.” Slip op. at 10. I submit that the major

ity cannot ha ve it both w ay s. Of co urse, que stioning

by l aw enfo

rcemen t office rs does not alon e effec tuate a seizure. Ho wever, if the circumstances surrounding the questioning “are

so intimidating as to demonst rate tha t a reas onable person would have be lieved he was not free to leave if he had not responded,” such questioning can result in a detention under the fourth amend ment. Immigration & Naturalizat ion Service v. Delgado
, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762 (1984); see also Bunch , 207 I ll. 2d at 19 -20; Brownlee
, 186 I ll. 2d at 520-21. In my

view, a r easonab le perso n in the pos i tion of C osby would not have believed he was free to terminate the encounter and drive aw ay: Cosby was stopped in the ear ly morning hours on a poorly li t and seldom traveled road; he was forced to wa it an extended period un

til a backup officer arrived at the sc ene; two police

cars with at leas t one ha ving flashing emerge ncy lights and a

n illuminated spotlight were park ed behind his car; he was in the7 Although the m ajority notes tha

t itis not c onstitut

ionally require d to tell a motorist that he or she is free to leav e before asking for consen t t o search the motorist’s car, knowledge of the right to refuse to consent is one factor to be taken into account in assessing the totality of the circumstances. Robine tte , 519 U.S. at 39, 136 L. Ed . 2d at 355, 117 S. Ct. at 421.

-36- presenceof two office

rs, with one having been called to the scene during the stop, which escalated the show of authority; he wa s asked to agree to a sear

ch of his vehic le as he w as being handed b ack his document s and informed about the warning; and at no po int was he told he was free to leave. 7 Under the totality of the circumstances, a

reasona ble person would not feel free to terminate the encounter and go about his business. In sum, Cosby was seized. See Bunch
, 207 I ll. 2d at 19-20; Brownlee , 186 I ll. 2d at 520-21. The seizure was

unreaso nable

because the officers ha

d n o reason able or a

rticulab le suspicion that C o sb y wa s e ng ag ed in wr on gd oi ng . A cc or di ng ly, Cosby’s subsequent “consent” to the search of his vehicle a nd hi s person was the product of an unlawful detention

. In turn, Cosby ’s arrest was tainted, and the fruits of the encounter should have bee n suppressed. The majority’s holdi n g to the c ontrary merely pay s lip service to the app l icable analy tical principles, and, by doing so, render s them mea

ningles s. I note two final poin

ts with respect to defendant Cosby ’s case. As stated earlier , the majo

rity opinion co mpletely

omits a number of key background

facts with respect to Cosby ’s case in orde r to reach its desire d le gal con

clusion. T

he major ity o pinion omitsfrom its “Background” that Kaus testifiedthat he stopped defendanton a twolane road with

littleor no tra

ffic and poor lighting conditions with no overhead lights. Kaus’ testimony

indicates that he had his squad car’s overhead emergency

lights and spotlight activated for the duration of the stop. Ka us a lso testif ied that it was his cu stom to remain in his squad c aruntil the backup officer arrived. After the backup officer–Officer Klima–arr ived at the scene, hepulled his car behind Kaus’ vehicle. Kaus testified that it was only then that he reappr oached defenda nt, asked him to consent to search his car, and askeddefendant to get out of the car and stand at

the rear passenger side of the vehicle. Kaus further testified that when defendant stood-37- at the rear passenger side of his car, defendant was in the presence of Office r Klima a nd was spe aking w ith him. Based upon Kaus’ testimony, at the time that Kaus r eapproached Cosby’s car, asked for

a consent search, and

directe d Cosby

out of his vehicle , it is apparent that Officer Klima was not only present at the
scene, but that he was also standing outside of his own police vehicle at the passenger side of de fen dant’s c ar. I t is my view that the only fair and reasonable inference

which canbe draw n from Of ficer K aus’ testimony is that both

office rs h ad e xited their cars and approached defendant’s vehicle, with one o n each si de of his c ar durin g this period. It is a

lso fair a nd reaso nable to d

raw an in ferenc e from Ka

us’ testimony that he called for a

backup unit and deliberately r emained in his vehicle until Klima arrived for thepur pose of having an additional offi cer at the scene of the stop–and an incre ased show of authority–at

the time he plan ned to ask defe ndant for consent t

o search. It is also a fair a n d reasonable inference that the ba ckup officer arrived at the scene in a police squa d car a nd that the police vehicles would have had their lights activated; indeed, a contra r y inferencewould see

m unreas onable. I

notethat the trial cou

rt set for th

no factual findings to dispute these reasonable infe rences. I have evaluated the facts of record, and, after consideri n g those f

acts ag ainst

our own precede nt ( i.e.
, Luedemann ) and that of the United States Supreme Court( i.e

. , Brendlin
, Mendenh all ), have reached a leg al

co nc lu si on th at is co nt ra ry t o t ha t o f t he ma jo ri ty. Second, I note that although Cosby was pulled over for a min or traffic violation and i ssu ed a war ning cit ation, Of ficer K aus fre ely admitted that he formulated an intent to ask Cosby f or a cons en t search prior to returning

his documents to him. Iam troubled by the specter of routine traffi c sto ps being regularlytransformed into socalled“consen sual” co ntraband searches wher e there is no reasona

ble

or articulable basis to suspect criminal wrongdo in g. The f ourth amendment

exists to protect citizens against such an unreaso nable interference

withtheir liberty. The major ity’s holding with respect to defendant Cosb y stands f or the propo siti on th at, fo llow ing t he conclusion of a lawful traffic stop, officers may detain a vehicle absent reasonable suspicion of any illegal activity a

nd for any a

mount of time, so long as the

y ul timately request and obtain “volun tary-38- consent” to sear ch the car. As I cannot countenanc e such a rule, I di ss en t i n p ar t f

ro m t he op in io n o f t he ma jo ri ty. The unreasona

ble ness of the police

conduct in Cosby ’s case is highlighted

by the factua l diffe rences between his case and that of defendant Mendoza. As stated, I disagr ee with the majori ty’s exclusive use of the Mendenh all fac tors i n deciding defendant’s constituti o nal challenge. However, viewing the totality of the circumstances presented, there is a significant difference in the extent of the coerc ive ef

fect of the police conduct as a whole between the cases of Cosby a

nd Mendoza. Unlike in t

he case of Cosby , the facts indi cate that for M endoza the

traffic stop had c ome to an e

nd at th e time t hat he was asked to consent to a search of his vehic l e. I n addition, the record reflects that the additional questions and answers took less than 30 seconds. Und er thes e cir cumst ance s, Mendoza exercisedhis right to refuse the re quest of t he offic ers, to te

rminate the encounter, and

to go about his business and drive away . The officers happened to be in a place where they lawfully had

a right to be, during this consensual encounter, where the y then observe d i n plain view what appeared to be a handg un in Mendoza’s vehicle. The office rs, seeing the gun in plain view, at

that point h ad proba

ble caus e to detain de

fendant for vio lation of the offense for which he was charged and ultimately convicted: ag gravated unlaw ful use of a weapon (720 ILC S 5/24–1.6(a)(1), (a)(3)(A) (West 2002)). See Coolidge v. New H

ampshire , 403 U.S. 443, 465, 29 L. Ed. 2d 564, 582, 91 S. Ct. 2022, 2037 (1971) (under cert ain c ircumstances the police may seize evidence in plain view withouta warrant). Becau se Mend oza was not seized at the time the officers questioned him and observed the presence of the gun in his car , his suppression motion should not have been granted.

JUS TICES KIL

BRIDE and BU

RKE join in this par tia l

concurr ence and partia

l dissent.