Docket No. 100914. 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

 DEREK M. LUEDEMANN, Appellee. 

Opinion filed October 5, 2006.

CHIEF JUSTICE THOMAS delivered the judgment of the court, 

with opinion. 

Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier 

concurred in the judgment and opinion. 

Justice Burke took no part in the decision. 

OPINION

Defendant, Derek M. Luedemann, was charged with driving 

under the influence of alcohol (DUI) (625 ILCS 5/11B501(a)(2) 

(West 2002)) and illegal transportation of alcohol (625 ILCS 

5/11B502(a) (West 2002)). In a separate case, defendant was charged 

with unlawful possession of a controlled substance (a 

methylenedioxy amphetamine derivative) (720 ILCS 570/402(c) 

(West 2002)). Defendant moved to quash his arrest and suppress 

evidence in both cases. Additionally, he petitioned to rescind the 

statutory summary suspension of his driver=s license. The basis for 

the motions was that there was no warrant for his arrest and that the 

arresting officer had neither probable cause nor a reasonable 

articulable suspicion that defendant was engaged in criminal activity. 
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In the DUI case, the circuit court of Kane County granted both the 

motion to suppress and the petition to rescind the statutory summary 

suspension. Defendant then moved in the controlled substances case 

to bar the State from contesting the motion to suppress. The trial 

court granted the motion, ruling that the State was collaterally 

estopped from contesting the motion to suppress. The State filed a 

certificate of impairment and appealed, arguing that the trial court in 

the DUI case erred in granting the motion to suppress and that the 

trial court in the controlled substances case erred when it granted the 

motion to collaterally estop the State from contesting the motion to 

suppress. The appellate court, with one justice dissenting, affirmed in 

part and vacated in part. 357 Ill. App. 3d 411. In the DUI case, the 

appellate court affirmed the trial court=s granting of the motion to 

suppress. However, the court also held that the State was not 

collaterally estopped from contesting the motion to suppress in the 

controlled substances case because, at the time the trial court made 

the collateral estoppel ruling, the trial court=s decision in the DUI 

case was on appeal and not yet final. 357 Ill. App. 3d at 426. We 

allowed the State=s petition for leave to appeal. 177 Ill. 2d R. 315. 

 BACKGROUND 

Officer Eric Pate of the Hampshire police department was the 

sole witness to testify at the hearing on defendant=s petition to rescind 

the statutory summary suspension of his driver=s license, and Officer 

Pate=s testimony was also considered by the trial court in ruling on 

defendant=s motion to suppress in the DUI case. Officer Pate testified 

that he was on patrol in a residential neighborhood on August 17, 

2002, at approximately 2:40 a.m. He was driving west on Julie Street 

when he saw defendant sitting in the driver=s seat of a car parked in 

front of 305 Julie Street. The car was legally parked and facing east. 

Officer Pate noticed that defendant was smoking a cigarette. As 

Officer Pate=s car came closer to defendant=s, he saw defendant reach 

toward the floorboard on the passenger side of the car. Officer Pate=s 

car was approximately 25 to 30 feet away from defendant=s car at this 

time. Defendant then returned to a seated position, and, as Officer 

Pate=s car approached, defendant slumped down approximately six to 

eight inches in his seat. 
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Officer Pate drove past defendant=s vehicle and parked in the 

center of the street, with his car still facing west. Officer Pate exited 

his vehicle and approached defendant=s car from the rear driver=s side. 

Defendant had his window rolled down, and he was listening to the 

car=s stereo. As Officer Pate approached, defendant turned off the 

car=s engine. Officer Pate had not asked him to do so. When Officer 

Pate was at the rear quarter panel of the vehicle, he noticed the neck 

of a brown glass bottle. The bottle was on the floor in front of the 

passenger seat. Officer Pate could see the top two or three inches of 

the bottle because he was illuminating the vehicle with his flashlight. 

Officer Pate noticed that the bottle was uncapped. Officer Pate asked 

defendant what he was doing there, and he also asked for defendant=s 

identification. Defendant provided his identification and explained 

that he was waiting for his girlfriend to return home. Defendant 

pointed to his girlfriend=s house but said that he did not know the 

address. Officer Pate explained that he had decided to question 

defendant about what he was doing because within the last week 

there had been vehicles damaged and three homes burglarized on 

Julie Street. The burglaries occurred between 5 p.m. and 8 a.m. 

However, the police had no description of the perpetrator or of the 

perpetrator=s vehicle. 

While Officer Pate was speaking to defendant, he noticed that 

defendant=s speech was slurred and that his eyes were bloodshot and 

glassy. Additionally, Officer Pate could smell alcohol on defendant=s 

breath. Because Officer Pate observed signs of intoxication, he 

radioed for another officer to join him. Officer Pate then pulled his 

squad car directly behind defendant=s car and activated his car=s 

videotape system. Officer Harris arrived on the scene, and the two 

officers approached defendant=s vehicle, one on each side. Harris 

found an open Miller Lite bottle on the floor of the passenger side of 

defendant=s vehicle, in the same spot where Officer Pate had 

previously noticed an open bottle. Officer Pate asked defendant to 

step out of the vehicle. Officer Pate then asked defendant if he could 

pat him down for weapons, and defendant agreed. Officer Pate found 

no weapons. He then instructed Officer Harris to remove the bottle 

from the vehicle. Harris said that the bottle was one-third full and 

cool to the touch. Officer Pate could see condensation on the bottle. 

Defendant admitted that he had been drinking, and he agreed to 

perform field sobriety tests. Defendant subsequently failed the 
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horizontal gaze nystagmus test, the nine-step walk-and-turn test, the 

one-leg stand test, and the finger-to-nose test. Officer Pate then told 

defendant that he believed defendant was under the influence of 

alcohol, and he placed defendant under arrest. Defendant protested 

that he had been parked, and Officer Pate explained to him that he 

had been in physical control of a motor vehicle. After defendant was 

arrested, the officers searched his vehicle and found a substance 

containing a methylenedioxy amphetamine derivative. 

At the close of Officer Pate=s testimony, the circuit court granted 

the petition to rescind the statutory summary suspension. The court 

found that Officer Pate had neither probable cause for an arrest nor a 

reasonable suspicion of criminal activity sufficient to justify a Terry

stop. The State moved to reconsider, arguing that the court=s ruling 

was erroneous because Officer Pate did not seize defendant until after 

he observed signs of intoxication. The State cited cases holding that 

the police do not violate the fourth amendment merely by 

approaching a person in public and asking him questions. See 

Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 

80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762 (1984); People v. Love, 

199 Ill. 2d 269, 278 (2002). Thus, according to the State, Officer Pate 

was entitled to approach defendant and ask him questions, provided 

that he did not make a show of authority sufficient to transform the 

encounter into a seizure. The State argued that no seizure occurred 

until Officer Pate asked defendant to step out of the car and, at that 

time, a Terry stop was warranted because Officer Pate had a 

reasonable suspicion that defendant was intoxicated while in control 

of a motor vehicle. Alternatively, the State argued that, even if 

Officer Pate did seize defendant prior to asking him to step out of the 

vehicle, defendant=s behavior was sufficiently suspicious to justify a 

stop under Terry. The circuit court denied the motion in a written 

order, without comment. 

Relying on the findings it made in granting the petition to rescind 

the statutory summary suspension, the circuit court later granted the 

motion to quash arrest and suppress evidence. The State moved for 

more detailed findings, arguing that the court=s findings were 

insufficient in that there were no findings of fact or any determination 

as to when the stop occurred. The State also moved to reconsider the 

order quashing arrest and suppressing evidence. 
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At a hearing on the State=s motions, the circuit court agreed to 

make more detailed findings. The court stated the following for the 

record: 

AAs I review the transcript the first witness to testify was 

Officer Eric Pate of the Hampshire police department. Officer 

Pate=s testimony from Page 6 through Page 11 essentially says 

that he was driving his car and he saw a person sitting in a parked 

car smoking a cigarette, and that he saw him lean forward and 

then ultimately slouched down a little bit. And on that basis he 

made a U turn, pulled in behind him and essentially conducted a 

stop.1

The Court finds, for the record, that on that basis Officer Pate, 

using good policeman intuition, stopped the vehicle. But in fact, 

his intuition, while ultimately turned up something, was really 

nothing more than a hunch. And I think as I stated at the time in 

Terry versus Ohio and as that case has been synthesized by the 

Second District, a hunch is not enough. 

So, with regard to a more detailed finding, the court finds that 

Officer Pate=s testimony is pretty straightforward and that he was 

operating, my view of his testimony was he was operating on a 

hunch. Now, that hunch turned out to be something that all 

policemen hope that their hunches turn out to be, but it was 

nothing more than a hunch.@

Following arguments on the State=s motion to reconsider, the 

court entered a written order denying the motion. That order stated: 

 

 1The circuit court misread the transcript. Officer Pate did not conduct a 

U-turn and pull in behind the defendant at this time. Rather, Officer Pate 

parked in the middle of the street, with his car facing in the opposite 

direction. It was not until after he observed signs of intoxication and radioed 

for backup that he pulled his car in behind defendant=s. 

ATHIS CAUSE, coming on for ruling on the state=s motion to 

reconsider the order to quash arrest and suppress arrest [sic]; and 
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the court having considered the evidence and arguments of 

counsel and having weighed the said evidence; Finds: the 

officer=s testimony regarding burglaries was creditable but not 

sufficient for the court to conclude that the area of the arrest was 

a high crime area. The officer essentially saw a young man sitting 

in a car smoking a cigarette. This conduct is not sufficient to 

warrant the approach and questioning that took place.@

The State filed a certificate of impairment and appealed pursuant to 

Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)). 

The appellate court affirmed, with one justice dissenting. 357 Ill. 

App. 3d 411. The appellate court first rejected the State=s argument 

that Officer Pate was acting in a community caretaking or public 

safety function when he approached defendant=s vehicle. 357 Ill. App. 

3d at 418-20. Next, the appellate court held that Officer Pate did not 

have reasonable, articulable suspicion of criminal activity sufficient 

to justify a Terry stop. Central to the appellate court=s holding was its 

belief that defendant was seized before Officer Pate observed an open 

bottle in defendant=s vehicle. 357 Ill. App. 3d at 420. The court 

acknowledged that none of the factors set forth in the lead opinion in 

United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. 

Ct. 1870 (1980),2

 were present in this case. 357 Ill. App. 3d at 423. 

However, the court held that the absence of Mendenhall factors Asays 

virtually nothing@ (357 Ill. App. 3d at 423) and instead found a 

seizure based upon three other factors. First, Officer Pate stopped his 

squad car in the middle of the road. The court believed that, by doing 

so, Officer Pate was demonstrating his authority as a police officer. 

The court noted that private citizens are not allowed to park in the 

middle of the street and that Officer Pate communicated a sense of 

urgency by parking in this manner. 357 Ill. App. 3d at 421. The court 

believed that Officer Pate should have simply pulled alongside 

 

 2The seizure analysis in Justice Stewart=s opinion in Mendenhall was 

joined only by Justice Rehnquist. However, by the time the court decided 

Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), it 

was apparent that a majority of the court had endorsed the Mendenhall test. 

See 4 W. LaFave, Search & Seizure '9.4(a), at 412 (4th ed. 2004); see also, 

e.g., Delgado, 466 U.S. at 215, 80 L. Ed. 2d at 255, 104 S. Ct. at 

1762. 
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defendant=s car and asked him questions because this would have 

communicated Anothing more than a casual encounter on the street.@

357 Ill. App. 3d at 422. Second, Officer Pate was shining a flashlight 

around and into defendant=s car as he approached. 357 Ill. App. 3d at 

421. Third, Officer Pate approached from the rear driver=s side 

quarter panel instead of Awalking up to the window as an ordinary 

citizen typically would.@ 357 Ill. App. 3d at 421. The court concluded 

that the presence of these three factors meant that a reasonable person 

would not have felt free to leave. 357 Ill. App. 3d at 421. After 

concluding that defendant was seized before Officer Pate observed an 

open bottle in the vehicle, the court considered the propriety of the 

seizure by addressing whether Officer Pate had a reasonable, 

articulable suspicion of criminal activity sufficient to justify a Terry 

stop. The court concluded that defendant=s actions in slouching down 

and reaching toward the floorboard of his car at 2:40 in the morning, 

on a street that had experienced recent burglaries, was insufficient for 

Officer Pate to have a reasonable, articulable suspicion that defendant 

was involved in a crime. 357 Ill. App. 3d at 424-25. Accordingly, the 

court upheld the suppression of evidence in the DUI case. The court 

also held that the State was not collaterally estopped from contesting 

the suppression motion in the controlled substances case, because the 

the DUI suppression order was on appeal and thus not final when the 

trial court made its collateral estoppel ruling. 357 Ill. App. 3d at 426. 

Presiding Justice O=Malley dissented. The dissent agreed with the 

majority=s conclusion that Officer Pate was not acting in a community 

caretaking or public safety function when he approached defendant=s 

vehicle. The dissent disagreed, however, with the majority=s 

conclusion that defendant was seized as Officer Pate approached 

defendant=s car on foot. The dissent was sharply critical of the 

majority=s approach, which looked to whether Officer Pate was acting 

like a private citizen or a police officer as he approached defendant=s 

vehicle. The dissent noted that the majority was adopting a rule that 

Apolice must act as little like police as possible, lest a seizure occur@

(357 Ill. App. 3d at 429 (O=Malley, P.J., dissenting)), and argued that 

such an approach was incompatible with controlling precedent from 

the United States Supreme Court and this court. Citing People v. 

Gherna, 203 Ill. 2d 165, 179 (2003), the dissent stated that an 

individual is not seized for fourth amendment purposes when the 

police merely ask questions of an individual, so long as the officer 
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does not convey by words or actions that compliance is required. 357 

Ill. App. 3d at 433-34 (O=Malley, P.J., dissenting). More specifically, 

the dissent noted that A >the mere approaching and questioning of a 

person seated in a parked vehicle does not constitute a seizure.= @ 357 

Ill. App. 3d at 434 (O=Malley, P.J., dissenting), quoting People v. 

Murray, 137 Ill. 2d 382, 391 (1990). The dissent argued that Officer 

Pate=s initial encounter with defendant was no more coercive than the 

encounter in Murray, which this court found not to be a seizure. 357 

Ill. App. 3d at 434 (O=Malley, P.J., dissenting). Further, the dissent 

observed that, in Murray, this court relied on the absence of the 

Mendenhall factors in determining that no seizure had occurred. 357 

Ill. App. 3d at 434 (O=Malley, P.J., dissenting), citing Murray, 137 Ill. 

2d at 390-91. 

Addressing each of the three factors that the majority found 

indicative of a seizure, the dissent concluded that none of them were 

inherently coercive. First, as to the majority=s suggestion that Officer 

Pate should have pulled alongside the defendant=s vehicle instead of 

driving past it and parking in the center of the street, the dissent 

argued that this would have been more coercive because Officer Pate 

would have been blocking defendant=s car in its space. As to the 

majority=s concern that the law does not allow private citizens to park 

in the middle of the street, the dissent argued that the law also does 

not allow private citizens to double park cars in order to carry on 

conversations with occupants of other vehicles. 357 Ill. App. 3d at 

431 (O=Malley, P.J., dissenting). Second, the dissent addressed the 

majority=s concern about Officer Pate=s use of a flashlight by citing 

cases holding that the shining of a flashlight into a car is not 

inherently coercive (see People v. Holdman, 73 Ill. 2d 213, 220 

(1978); People v. Erby, 213 Ill. App. 3d 657, 662 (1991)). 357 Ill. 

App. 3d at 432 (O=Malley, P.J., dissenting). Third, as to the angle of 

Officer Pate=s approach to the vehicle, the dissenting justice stated 

that he did not understand the majority=s Ageometrical analysis.@ 357 

Ill. App. 3d at 432 (O=Malley, P.J., dissenting). The dissent disputed 

the majority=s assertion that a private citizen would walk right up to 

the window rather than approaching from the rear. The dissent 

contended that the trajectory of a private citizen=s approach to the car 

would be determined from where he began his approach. 357 Ill. 

App. 3d at 432 (O=Malley, P.J., dissenting). The dissent argued that 

officers approach from the rear out of concern for their safety, and 
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that the majority=s requirement that the police do not use such tactics 

could have Atruly lethal effects.@ 357 Ill. App. 3d at 432 (O=Malley, 

P.J., dissenting). For all of these reasons, the dissent predicted that 

reversal by this court was inevitable. 357 Ill. App. 3d at 435 

(O=Malley, P.J., dissenting). We allowed the State=s petition for leave 

to appeal. 177 Ill. 2d R. 315. Additionally, we granted the Fraternal 

Order of Police of Illinois leave to submit an amicus curiae brief in 

support of the State. 

ANALYSIS 

The State raises two issues. First, the State argues that the 

appellate court erred in determining that defendant was seized before 

Officer Pate observed an open bottle in his vehicle. The State 

contends that the seizure did not occur until after Officer Pate 

observed an open bottle and signs of intoxication. Alternatively, the 

State contends that, even if Officer Pate effectuated a Terry stop prior 

to observing the open bottle, the stop was supported by a reasonable 

suspicion that defendant was engaged in criminal activity. The State 

has abandoned its argument that Officer Pate was acting in a 

community caretaking or public safety capacity when he approached 

defendant=s vehicle. 

Standard of Review 

In reviewing a trial court=s ruling on a motion to suppress 

evidence, we apply the two-part standard of review adopted by the 

Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 134 L. 

Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). Under this standard, a 

trial court=s findings of historical fact should be reviewed only for 

clear error, and a reviewing court must give due weight to any 

inferences drawn from those facts by the fact finder. Ornelas, 517 

U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. In other words, 

we give great deference to the trial court=s factual findings, and we 

will reverse those findings only if they are against the manifest 

weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 

(2001). A reviewing court, 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 be granted. People 

v. Pitman, 211 Ill. 2d 502, 512 (2004). Accordingly, we review de 
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novo the trial court=s ultimate legal ruling as to whether suppression 

is warranted.3 Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. 

Ct. at 1663; Pitman, 211 Ill. 2d at 512; Sorenson, 196 Ill. 2d at 431. 

 Timing of the Seizure 

 

 3We briefly note that in People v. Caballes, 221 Ill. 2d 282, 289 (2006), 

we stated, A >[W]hen a trial court=s ruling on a motion to suppress evidence 

involves factual determinations and credibility assessments,= the ruling will 

not be disturbed on appeal unless it is manifestly erroneous.@ This sentence 

quoted Sorenson=s description of the pre-Sorenson standard of review, but 

only for purposes of describing why we were reviewing the trial court=s 

finding that Athe police dog *** was well trained and sufficiently reliable@

under the manifest weight of the evidence standardBi.e., because that 

finding was a factual determination to which deference was owed. See 

Caballes, 221 Ill. 2d at 289. To avoid any future confusion, we clarify that, 

in Caballes, we did not intend to revert to the pre-Sorenson standard of 

review. Indeed, in Caballes, we went on to conclude that A[o]n the record 

before us, we find no basis for concluding that the trial court=s finding of 

reliability was manifestly erroneous@ (emphasis added) (Caballes, 221 Ill. 

2d at 335), by which we meant that the factual determination subject to our 

review was not against the manifest weight of the evidence. 

The critical issue in this case is the timing of the seizure. The 

State argues that the seizure did not occur until after Officer Pate 
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observed an open bottle in the vehicle and noticed that defendant was 

exhibiting signs of intoxication. These observations obviously gave 

Officer Pate the reasonable suspicion necessary to detain defendant 

and to investigate further. Defendant contends, however, that the 

appellate court correctly determined that the seizure occurred prior to 

Officer Pate=s observation of the open bottle. Defendant argues that 

he was seized for fourth amendment purposes when Officer Pate 

parked his vehicle in the middle of the street and approached 

defendant=s car from the rear, while illuminating the car with a 

flashlight. Thus, according to defendant, we must determine whether 

Officer Pate had a reasonable suspicion of criminal activity sufficient 

to effectuate a seizure before he observed the open bottle. Defendant 

contends that the lower courts correctly concluded that such 

reasonable suspicion was lacking. We agree with the State that no 

seizure occurred until after Officer Pate had a reasonable suspicion 

that defendant was intoxicated while in control of a motor vehicle and 

thus do not address whether Officer Pate had a reasonable suspicion 

of criminal activity when he first approached defendant=s vehicle. 

The Three Tiers of Police-Citizen Encounters

It is well settled that not every encounter between the police and a 

private citizen results in a seizure. Delgado, 466 U.S. at 215, 80 L. 

Ed. 2d at 254, 104 S. Ct. at 1762; People v. White, 221 Ill. 2d 1, 21 

(2006). Courts have divided police-citizen encounters into three tiers: 

(1) arrests, which must be supported by probable cause; (2) brief 

investigative detentions, or ATerry stops,@ which must be supported 

by a reasonable, articulable suspicion of criminal activity; and (3) 

encounters that involve no coercion or detention and thus do not 

implicate fourth amendment interests. United States v. Black, 675 

F.2d 129, 133 (7th Cir. 1982); United States v. Berry, 670 F.2d 583, 

591 (5th Cir. 1982). Third-tier encounters are also known as 

consensual encounters. Gherna, 203 Ill. 2d at 177. Previously, when 

listing the three tiers of police-citizen encounters, this court has often 

used imprecise language. This court has frequently referred to the 

third tier as the Acommunity caretaking function.@ See, e.g., White, 

221 Ill. 2d at 21; People v. Smith, 214 Ill. 2d 338, 351-52 (2005); 

People v. Murray, 137 Ill. 2d 382, 387 (1990). The appellate court, 

both in this case and other cases, has been critical of this court=s use 
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of the label Acommunity caretaking@ to describe third-tier consensual 

encounters. See 357 Ill. App. 3d at 418-20; People v. James, 365 Ill. 

App. 3d 847, 851 (2006); People v. Mitchell, 355 Ill. App. 3d 1030, 

1033-34 (2005). The use of this label is traceable to Murray, in which 

this court cited Berry for the three tiers, but then added an incorrect 

explanatory sentence. Initially, Murray properly stated that the third 

tier Ainvolves no coercion or detention and therefore does not involve 

a seizure.@ Murray, 137 Ill. 2d at 387. Murray then incorrectly stated 

that A[t]his tier is commonly known as the community caretaking 

function or public safety function.@ Murray, 137 Ill. 2d at 387. No 

citation to authority was provided for this assertion. 

In Collins v. State, 1993 WY 83, 854 P.2d 688, the Supreme 

Court of Wyoming collected the state and federal cases that have 

recognized, either explicitly or implicitly, the three tiers, and this 

court=s decision in Murray was the only one to refer to the third tier 

as Acommunity caretaking.@ See Collins, 1993 WY 83, &10 nn.3, 4, 

854 P.2d at 692 nn.3, 4 (collecting cases).4

 That courts do not 

generally refer to the third tier as community caretaking makes sense. 

Third-tier encounters are consensual encounters involving no 

coercion or detention. ACommunity caretaking,@ rather than 

describing a tier of police-citizen encounter, refers to a capacity in 

which the police act when they are performing some task unrelated to 

 

 4Since Collins was decided, courts in three other statesBNew Mexico, 

North Dakota, and TennesseeBhave referred to the third tier as Acommunity 

caretaking.@ In State v. Ryon, 137 N.M. 174, 183, 108 P.3d 1032, 1041 

(2005), the Supreme Court of New Mexico acknowledged its mistake and 

overruled those cases that had used community caretaking as a label to 

describe voluntary or consensual encounters. North Dakota began using the 

label in State v. Halfman, 518 N.W.2d 729, 730 (N.D. 1994). The three 

cases it cited for this proposition were Murray, United States v. Hernandez, 

854 F.2d 295 (8th Cir. 1988), and Thompson v. State, 303 Ark. 407, 797 

S.W.2d 450 (1990). Neither Hernandez nor Thompson refer to the third tier 

as community caretaking, so it appears that North Dakota=s use of the label 

has its origins in this court=s decision in Murray. Tennessee began using the 

label in State v. Hawkins, 969 S.W.2d 936, 939 (Tenn. Crim. App. 1997). 

Like this court in Murray, the Tennessee court cited the Fifth Circuit=s 

decision in Berry for this proposition, and Berry contains no such statement. 
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the investigation of crime. See D. Livingston, Police, Community 

Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 

261-63, 272 (1998) (noting that A[p]olice spend relatively less time 

than is commonly thought investigating violations of the criminal 

law@ and spend a good deal of time performing such functions as 

responding to heart attack victims, helping children find their parents, 

helping inebriates find their way home, responding to calls about 

missing person or sick neighbors, mediating noise disputes, 

responding to calls about stray or injured animals, investigating 

premises left open at night, taking lost property into their possession, 

and removing abandoned property). Courts use the term Acommunity 

caretaking@ to uphold searches or seizures as reasonable under the 

fourth amendment when police are performing some function other 

than investigating the violation of a criminal statute. When a search is 

involved, courts use the term Acommunity caretaking@ to describe an 

exception to the warrant requirement. See, e.g., United States v. 

Coccia, 446 F.3d 233, 238 (1st Cir. 2006); United States v. Johnson, 

410 F.3d 137, 143-44 (4th Cir. 2005). 

The community caretaking exception was first set forth by the 

Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d 

706, 93 S. Ct. 2523 (1973). In that case, a Chicago police officer who 

had been drinking was involved in an automobile accident in 

Wisconsin. The Wisconsin officers who responded to the scene were 

under the impression that Chicago police officers were required to 

carry their service revolvers with them at all times. Before the car 

was towed from the scene, the Wisconsin officers looked in the glove 

box and the front-seat area to see if they could locate the revolver. No 

revolver was found in those areas, and the automobile was towed to a 

garage. One of the officers later went to the garage and searched the 

passenger compartment and trunk. The officer testified that 

attempting to retrieve a weapon in these situations was standard 

police procedure. The purpose of this procedure was to prevent the 

public from Athe possibility that a revolver would fall into untrained 

or perhaps malicious hands.@ Cady, 413 U.S. at 443, 37 L. Ed. 2d at 

716, 93 S. Ct. at 2529. The officer did not find the revolver, but he 

did find various bloody items, and the question was whether they 

could later be used in a murder prosecution against the Chicago 

officer. The Supreme Court upheld the search as reasonable under the 

fourth amendment. The Court explained that A[l]ocal police officers, 
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unlike federal officers, frequently investigate vehicle accidents in 

which there is no claim of criminal liability and engage in what, for 

want of a better term, may be described as community caretaking 

functions, totally divorced from the detection, investigation, or 

acquisition of evidence relating to the violation of a criminal statute.@

Cady, 413 U.S. at 441, 37 L. Ed. 2d at 714-15, 93 S. Ct. at 2528. The 

search was reasonable because it was undertaken to protect the safety 

of the general public. Cady, 413 U.S. at 447, 37 L. Ed. 2d at 718, 93 

S. Ct. at 2531. The Court also noted that at the time the Wisconsin 

officer searched the car, he was unaware that a murder had been 

committed. Cady, 413 U.S. at 447, 37 L. Ed. 2d at 718, 93 S. Ct. at 

2531. 

 An example of a seizure upheld under the community caretaking 

exception is found in State v. Chisholm, 39 Wash. App. 864, 696 P.2d 

41 (1985). In that case, a police officer in an unmarked car noticed a 

pickup truck that had a hat on top of it. He tried unsuccessfully to get 

the driver=s attention, and then radioed ahead to an officer in a 

marked vehicle. The second officer stopped the defendant=s vehicle to 

tell him about the hat, and, upon approaching, noticed an open can of 

beer in plain view. The court upheld the stop under the community 

caretaking exception, noting that Aan individual=s interest in 

proceeding about his business unfettered by police interference must 

be balanced against the public=s interest in having police officers 

perform services in addition to the traditional enforcement of penal 

and regulatory laws.@ Chisholm, 39 Wash. App. at 867, 696 P.2d at 

43. 

The courts in these cases upheld the searches or seizures as 

reasonable because the police were acting in a community caretaking 

or public safety function. The analysis had nothing to do with the 

encounters being consensual. Because the officer in Chisholm

stopped the defendant=s vehicle, the encounter could not be said to 

have involved no detention. The defendant in Cady did not consent to 

the search of his vehicle. Indeed, if Acommunity caretaking@ was just 

another name for consensual encounters, there would have been no 

need for the Supreme Court to formulate the exception in the first 

place. To be sure, a police officer acting in a community caretaking 

function can engage in a consensual encounter. For instance, if a 

police officer stops to aid a person whose vehicle has broken down 

on the side of the highway and then notices an open bottle of alcohol 
-15-

in the car, the officer would be both acting in his community 

caretaking function and engaging in a consensual encounter. 

However, because the act of stopping to assist a stranded motorist 

would not have been a seizure in the first place, a court would have 

no need to invoke the community caretaking exception. 

It is clear, then, that the Acommunity caretaking@ doctrine is 

analytically distinct from consensual encounters and is invoked to 

validate a search or seizure as reasonable under the fourth 

amendment. It is not relevant to determining whether police conduct 

amounted to a seizure in the first place. Those cases such as White, 

Smith, and Murray, that refer to the third tier of police-citizen 

encounters as Acommunity caretaking,@ should no longer be followed 

for that point. Similarly, cases such as People v. Gonzalez, 204 Ill. 2d 

220, 224 (2003), that state that Acommunity caretaking@ is a label to 

describe consensual encounters should no longer be followed on that 

specific point. 

This court=s error in describing the third tier is not without 

consequence. If the third tier of police-citizen encounters is referred 

to as Acommunity caretaking,@ that would suggest that if the police 

lack a reasonable, articulable suspicion of criminal activity, they may 

not approach a citizen unless they are acting in a community 

caretaking function. This is obviously not the case, as the law clearly 

provides that a police officer does not violate the fourth amendment 

merely by approaching a person in public to ask questions if the 

person is willing to listen. United States v. Drayton, 536 U.S. 194, 

200, 153 L. Ed. 2d 242, 251, 122 S. Ct. 2105, 2110 (2002); People v. 

Love, 199 Ill. 2d 269, 278 (2002). There has never been a 

requirement that the police must be acting in a community caretaking 

function to prevent the encounter from turning into a seizure. Indeed, 

the Supreme Court has stated expressly that the police have the right 

to approach citizens and ask potentially incriminating questions. See

Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 401, 111 S. 

Ct. 2382, 2388 (1991) (AThe dissent reserves its strongest criticism 

for the proposition that police officers can approach individuals as to 

whom they have no reasonable suspicion and ask them potentially 

incriminating questions. But this proposition is by no means novel; it 

has been endorsed by the Court any number of times. Terry, Royer, 

Rodriguez, and Delgado are just a few examples@); see also, e.g., 

United States v. Winston, 892 F.2d 112, 117 (D.C. Cir. 1989) (lawful 
-16-

for police officer to approach the defendant and ask questions 

regardless of whether the officer had a reasonable suspicion that the 

defendant was involved in a crime); People v. Melton, 910 P.2d 672, 

677 (Colo. 1996) (A[t]he subjective suspicions of the police do not 

distinguish a consensual encounter from an investigatory stop. In 

fact, in most cases regarding consensual encounters the police 

approach individuals because they have suspicions about them@). 

 

The Encounter Between Officer Pate and Defendant 

Having properly set forth the three tiers of police-citizen 

encounters, we next consider the nature of the encounter when 

Officer Pate approached defendant=s vehicle. Defendant contends that 

Officer Pate seized him for fourth amendment purposes before 

observing the open bottle and signs of intoxication, while the State 

maintains that the encounter remained a third-tier consensual 

encounter prior to Officer Pate=s observations. 

For purposes of the fourth amendment, an individual is Aseized@

when an officer A >by means of physical force or show of authority, 

has in some way restrained the liberty of a citizen.= A Bostick, 501 

U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386, quoting Terry v. 

Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 

1879 n.16 (1968). Initially, we note that the appellate court framed 

the seizure standard incorrectly. Citing Mendenhall, the appellate 

court stated that a Aseizure occurs when a reasonable person would 

not feel free to leave under the circumstances.@ 357 Ill. App. 3d at 

421. Although Afree to leave@ is the correct test for certain situations, 

it was not applicable here. In Bostick, 501 U.S. at 435, 115 L. Ed. 2d 

at 399, 111 S. Ct. at 2386, the Supreme Court explained that the Afree 

to leave@ language makes sense when the person is walking down a 

street or through an airport lobby. However, in situations in which the 

person=s freedom of movement is restrained by some factor 

independent of police conduct the Afree to leave@ test is inapplicable 

and Athe appropriate inquiry is whether a reasonable person would 

feel free to decline the officers= requests or otherwise terminate the 

encounter.@ Bostick, 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. 

at 2387. In Bostick, the Supreme Court applied this test to persons 

seated on a bus. 
-17-

The question of which test applies to a person seated in a parked 

vehicle was settled by this court in Gherna. In that case, this court 

applied Bostick rather than Mendenhall. See Gherna, 203 Ill. 2d at 

178. Thus, the appropriate test is whether a reasonable person in 

defendant=s position would have believed he was free to decline 

Officer Pate=s requests or otherwise terminate the encounter. 

Moreover, the test presupposes a reasonable innocent person. Bostick, 

501 U.S. at 438, 115 L. Ed. 2d at 400, 111 S. Ct. at 2388. The 

analysis requires an objective evaluation of the police conduct in 

question and does not hinge upon the subjective perception of the 

person involved. White, 221 Ill. 2d at 21-22. It is well settled that a 

seizure does not occur simply because a law enforcement officer 

approaches an individual and puts questions to that person if he or 

she is willing to listen. Gherna, 203 Ill. 2d at 178; Drayton, 536 U.S. 

at 200, 153 L. Ed. 2d at 251, 122 S. Ct. at 2110. In Bostick, the 

Supreme Court explained that the police may do more than merely 

ask questions without turning the encounter into a seizure: 

AWe have stated that even when officers have no basis for 

suspecting a particular individual, they may generally ask 

questions of that individual [citations] ; ask to examine the 

individual=s identification [citations]; and request consent to 

search his or her luggage [citations]Bas long as the police do 

not convey a message that compliance with their requests is 

required.@ Bostick, 501 U.S. at 434-35, 115 L. Ed. 2d at 398-

99, 111 S. Ct. at 2386. 

The central flaw in the appellate court=s opinion was its failure to 

consider and discuss the large body of case law addressing whether 

police approaches to parked vehicles amounted to seizures. The 

appellate court freed itself from the moorings of precedent by 

asserting that each of these cases is Asui generis in that no two factual 

situations are identical@ and that, while precedent may provide some 

insight, Acommon sense@ must be a court=s main guide. 357 Ill. App. 

3d at 421. The court=s failure to consider the applicable case law 

resulted in the court=s finding a seizure based on factors that courts 

had not previously found to be coercive, and the necessary 

consequence of the appellate court=s opinion would be to make a 

seizure of every approach of a police officer to a parked vehicle at 

night. 
-18-

Although it is true that the facts of no two cases are ever exactly

the same, that does not mean that a court is free simply to ignore an 

entire body of relevant case law and the principles and guidelines 

articulated therein. Nowhere in the appellate court majority opinion is 

there even an acknowledgment of the general rule that the police may 

approach and question a person seated in a parked vehicle without 

that encounter being labeled a seizure. As Professor LaFave has 

noted, Aif an officer merely walks up to a person standing or sitting in 

a public place (or, indeed, who is seated in a vehicle located in a 

public place) and puts a question to him, this alone does not 

constitute a seizure.@ 4 W. LaFave, Search & Seizure '9.4(a), at 419-

21 (4th ed. 2004). The Aseated in a vehicle@ clause of the above 

passage is supported by a lengthy list of citations to the many state 

and federal decisions that have recognized this rule. See 4 W. 

LaFave, Search & Seizure '9.4(a), at 419-20, 420 n.49 (collecting 

cases). In Murray, this court held that the mere approaching and 

questioning of a person seated in a parked vehicle does not constitute 

a seizure and listed many decisions from other jurisdictions that had 

reached the same conclusion. Murray, 137 Ill. 2d at 391-93. Thus, 

any analysis of such a situation must begin with the recognition that 

the police may approach a person seated in a parked vehicle and ask 

questions of that person without that encounter being labeled a 

seizure.5

 The encounter becomes a seizure only if the officer, through 

 

 5This rule in and of itself defeats the trial court=s rationale for granting 

the motion to suppress. In the trial court, defendant argued that Officer Pate 

Ahad no right at that time to approach [defendant] and engage him in 

conversation under the circumstances.@ The trial court adopted this position 

in its written order, stating that Officer Pate had not observed conduct 

sufficient to warrant the approach and questioning that took place. In later 

explaining its ruling from the bench, the trial court stated, A[t]here was no 

basis to approach.@
-19-

physical force or a show of authority, restrains the liberty of the 

vehicle=s occupant. See Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 

398, 111 S. Ct. at 2386 

In Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 

1877, the lead opinion listed four factors that may be indicative of a 

seizure: (1) the threatening presence of several officers; (2) the 

display of a weapon by an officer; (3) some physical touching of the 

person of the citizen; and (4) the use of language or tone of voice 

indicating that compliance with the officer=s request might be 

compelled. This court adopted these factors in Murray. See Murray, 

137 Ill. 2d at 390. The record clearly shows that none of these factors 

were present here. The appellate court did not consider this relevant 

because it concluded that A[w]hile the presence of such factors may 

be highly indicative of the occurrence of a seizure, their absence says 

virtually nothing.@ (Emphasis added.) 357 Ill. App. 3d at 423. 

Immediately preceding this passage, however, the appellate court 

cited those pages in Murray (137 Ill. 2d at 390-91) in which we find 

the exact opposite rule. In Murray, this court listed the four 

Mendenhall factors and then quoted Mendenhall for the proposition 

that A >[i]n the absence of some such evidence, otherwise inoffensive 

contact between a member of the public and the police cannot, as a 

matter of law, amount to a seizure of that person.= @ (Emphasis 

added.) Murray, 137 Ill. 2d at 390-91, quoting Mendenhall, 446 U.S. 

at 555, 64 L. Ed. 2d at 509-10, 100 S. Ct. at 1877. After stating this 

rule, this court reviewed each of the Mendenhall factors, found that 

they were absent, and thus concluded that no seizure had occurred. 

Murray, 137 Ill. 2d at 390-91; see also Smith, 214 Ill. 2d at 353-54 

(relying on absence of Mendenhall factors to conclude that no seizure 

had occurred). Indeed, Mendenhall itself used an analysis based on 

the absence of Mendenhall factors. The lead opinion listed the four 

factors, noted their absence, and then concluded that no seizure had 

occurred. Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10, 

100 S. Ct. at 1877. From the very minute the Mendenhall factors 

were created, courts have used their absence to determine that 

seizures had not occurred. 

Even in the absence of cases such as Mendenhall, Murray, and 

Smith, it would seem self-evident that the absence of Mendenhall 

factors, while not necessarily conclusive, is highly instructive. If 

those factors are absent, that means that only one or two officers 
-20-

approached the defendant, they displayed no weapons, they did not 

touch the defendant, and they did not use any language or tone of 

voice indicating that compliance with their requests was compelled. 

Obviously, a seizure is much less likely to be found when officers 

approach a person in such an inoffensive manner. 

 The appellate court believed that, because Mendenhall stated that 

courts should look to the totality of the circumstances in determining 

whether a seizure had occurred, the court must conduct a Apractical, 

realistic@ inquiry to determine if a reasonable person would have felt 

free to leave and that the court should not focus on rigid, technical 

rules such as the Mendenhall factors.6

 357 Ill. App. 3d at 421-24. The 

problem with this view is that, immediately after Mendenhall said 

that a person is seized if Ain view of all of the circumstances 

surrounding the incident, a reasonable person would have believed 

that he was not free to leave@ (Mendenhall, 446 U.S. at 554, 64 L. Ed. 

2d at 509, 100 S. Ct. at 1877), it elaborated on how courts are to 

make that determination. The lead opinion listed several factors that 

are generally indicative of a seizure, said that in the absence of some 

such evidence otherwise inoffensive contact between a member of the 

public and the police is not a seizure, and then concluded that no 

seizure had occurred because those factors were not present. 

Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10, 100 S. Ct. at 

1877. This court expressly adopted those factors in Murray. The Ain 

view of all the circumstances@ language must be read in concert with, 

not in opposition to, the factors. See, e.g., Smith, 214 Ill. 2d at 352-

53. The factors illustrate what type of police conduct 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. 

Moreover, we disagree with the appellate court=s characterization 

of Mendenhall as requiring a Apractical, realistic inquiry@ of whether 

a reasonable person in the defendant=s situation would feel free to 

 

 6It is not entirely clear how the appellate court determined that Ain view 

of all the circumstances@ is synonymous with Apractical, realistic inquiry.@

The Supreme Court=s requirement that courts consider all the circumstances 

means simply that courts must assess the coercive effect of police conduct 

taken as a whole. See Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. 

Ed. 2d 565, 572, 108 S. Ct. 1975, 1979 (1988).
-21-

leave. This is not a description that one often sees applied to the 

Mendenhall standard. Indeed, the first person identified under the 

Mendenhall standard as someone who would feel free to walk away 

was a woman approached in an airport by federal agents who 

identified themselves as such and asked to see her ticket and 

identification. Justice Stewart=s opinion did not consider practically 

and realistically whether people in airports feel free to walk away 

from federal agents who ask to see their tickets and identification, but 

rather looked objectively at the police conduct under recognized 

factors to determine if they had curtailed the defendant=s liberty 

through physical force or a show of authority. Moreover, the Court 

focused on what, objectively, the police conduct would cause a 

reasonable person to believe: A[N]othing in the record suggests that 

the respondent had any objective reason to believe that she was not 

free to end the conversation in the concourse and proceed on her way 

***.@ Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at 

1878. Professor LaFave has explained that the Mendenhall test is not 

to be given a literal reading: 

A[I]f [the free to walk away language] is taken to mean that a 

pedestrian whose movements have been interrupted and who 

is questioned is likely to feel free to depart without 

responding, it is a highly questionable conclusion. As noted 

in Illinois Migrant Council v. Pilliod: >Implicit in the 

introduction of the [officer] and the initial questioning is a 

show of authority to which the average person encountered 

will feel obliged to stop and respond. Few will feel that they 

can walk away or refuse to answer.= This, it is submitted, is an 

accurate characterization of the great majority of situations in 

which an officer approaches a pedestrian and seeks an 

explanation for his activities or even identification. Thus, if 

the ultimate issue is perceived as being whether the suspect 

>would feel free to walk away,= then virtually all 

police-citizen encounters must in fact be deemed to involve a 

Fourth Amendment seizure. The Mendenhall-Royer standard 

should not be given such a literal reading as to produce such a 

result.@ 4 W. LaFave, Search & Seizure '9.4(a), at 423-24 

(4th ed. 2004). 

We thus do not agree with the appellate court=s conclusion that the 

absence of Mendenhall factors Asays virtually nothing@ and that a 
-22-

seizure is determined solely by a Apractical, realistic@ inquiry into 

whether a reasonable person in defendant=s position would have felt 

free to leave (or, as is appropriate here, whether a reasonable person 

would have felt free to decline the officer=s requests or otherwise 

terminate the encounter). Rather, the Supreme Court requires an 

objective evaluation of police conduct, based upon recognized 

standards, and an objective evaluation of what that conduct would 

cause a reasonable person to believe. This makes perfect sense 

because Aany test intended to determine what street encounters are 

not seizures must be expressed in terms that can be understood and 

applied by the officer.@ See 4 W. LaFave, Search & Seizure '9.4(a), 

at 414 (4th ed. 2004). 

Although it is not true that the absence of Mendenhall factors 

Asays virtually nothing,@ it is true that those factors are not exhaustive 

and that a seizure can be found on the basis of other coercive police 

behavior that is similar to the Mendenhall factors. Courts have 

developed additional rules applicable to police approaches of 

occupants of parked vehicles. Professor LaFave has summarized 

these cases as follows: 

AAs noted earlier, the mere approach and questioning of 

[persons seated within parked vehicles] does not constitute a 

seizure. The result is not otherwise when the officer utilizes 

some generally accepted means of gaining the attention of the 

vehicle occupant or encouraging him to eliminate any barrier 

to conversation. The officer may tap on the window and 

perhaps even open the door if the occupant is asleep. A 

request that the suspect open the door or roll down the 

window would seem equally permissible, but the same would 

not be true of an order that he do so. Likewise, the encounter 

becomes a seizure if the officer orders the suspect to >freeze=

or to get out of the car.@ 4 W. LaFave, Search & Seizure 

'9.4(a), at 433 (4th ed. 2004). 

By contrast, factors that courts have found indicative of a seizure of a 

parked vehicle are Aboxing the car in, approaching it on all sides by 

many officers, pointing a gun at the suspect and ordering him to place 

his hands on the steering wheel, or use of flashing lights as a show of 

authority.@ 4 W. LaFave, Search & Seizure '9.4(a), at 434-35 (4th ed. 

2004). Because the appellate court failed to discuss these factors, it is 
-23-

unclear whether they were aware of them. We find it relevant that 

Officer Pate=s encounter with defendant involved none of this 

conduct. 

The appellate court did identify three new factors that it believed 

were indicative of a seizure, but we disagree with the court=s 

conclusion that these factors are coercive. The first factor cited by the 

appellate court was Officer Pate=s stopping of his vehicle in the 

middle of the roadway. The appellate court concluded that, by doing 

so, Officer Pate was demonstrating his authority as a police officer 

because private citizens may not stop their cars in the middle of the 

street and Ablock traffic.@

7

 357 Ill. App. 3d at 421. The court cited 

section 11B1304 of the Illinois Vehicle Code (625 ILCS 5/11B1304 

(West 2002)). The court further concluded that Officer Pate=s 

stopping of his vehicle in this manner demonstrated a sense of 

urgency. According to the appellate court, what Officer Pate should 

have done instead would have been to pull up alongside defendant=s 

vehicle and talk to him because that would have communicated 

Anothing more than a casual encounter on the street.@ 357 Ill. App. 3d 

at 422. 

 

 7Because Officer Pate was parked on a residential street, in a small town, 

at 2:40 a.m., the appellate court=s concern that he was Ablocking traffic@ was 

overstated. 

There are several problems with the appellate court=s analysis. 

First, the court cited no authority for the proposition that a police 

officer=s parking of his vehicle in a manner not allowed for private 

citizens is inherently coercive. We find it more relevant that Officer 

Pate did nothing to signal that compliance was expected, such as 

turning on his overhead flashing lights as a show of authority. He did 

not even pull his car in behind defendant=s vehicle until after he had 

noticed signs of intoxication. Although the appellate court believed 

that Officer Pate was demonstrating a sense of urgency and 

displaying his authority as a police officer, another equally likely 

explanation for Officer Pate=s behavior was that he did not expect to 

be at the scene very long. This inference is supported by the fact that 
-24-

Officer Pate pulled his vehicle in behind defendant=s vehicle after he 

noticed signs of intoxication and radioed for assistance. Once it was 

apparent that he would be at the scene for a while, he moved his car 

out of the middle of the street. Second, even if the appellate court was 

correct that a police officer commits a show of authority by parking 

in a manner not allowed for private citizens, its proposed cure would 

not have fixed the problem. If Officer Pate would have pulled up 

alongside the defendant=s vehicle as the appellate court wanted him to 

do, that also would have been an action that the law does not allow 

private citizens to engage in. See 625 ILCS 5/11B1303(a)(1) (West 

2004) (A[e]xcept when necessary to avoid conflict with other traffic, 

or in compliance with law or the directions of a police officer or 

official traffic-control device, no person shall: 1. Stop, stand or park a 

vehicle: a. On the roadway side of any vehicle stopped or parked at 

the edge or curb of a street@). Third, if Officer Pate would have pulled 

alongside defendant=s vehicle, he would have been blocking 

defendant in his parking space, and this is a factor often used by 

courts to determine that a seizure of a person in a parked vehicle has 

occurred. In Gherna, one of the factors that this court relied on in 

determining that the defendant was seized was that two officers on 

bicycles positioned themselves alongside the driver=s door and the 

passenger=s door: Athe positioning of the officers and their bicycles 

prevented defendant from either exiting the vehicle or driving the 

vehicle away from the scene.@ Gherna, 203 Ill. 2d at 180; see also 

United States v. Kerr, 817 F.2d 1384 (9th Cir. 1987) (finding seizure 

where police blocked car in a one-lane driveway); People v. Beverly, 

364 Ill. App. 3d 361, 370 (2006) (finding seizure where police officer 

parked perpendicularly behind defendant=s vehicle, blocking it in its 

parking spot); Commonwealth v. King, 389 Mass. 233, 241, 449 

N.E.2d 1217, 1223 (1983) (officer committed seizure when he 

positioned his cruiser in such a way as to block defendant=s vehicle in 

its parking space); State v. Roberts, 293 Mont. 476, 483, 977 P.2d 

974, 979 (1999) (seizure where officer parked his car in such a way 

as to block defendant in his driveway); Commonwealth v. Greber, 

478 Pa. 63, 67, 385 A.2d 1313, 1316 (1978) (seizure where officer 

parked his squad car in front of a parked car in such a way as to block 

it in a parking lot); cf. United States v. Encarnacion-Galvez, 964 F.2d 

402, 410 (5th Cir. 1992) (border patrol agents approached two 

persons in a parked vehicle and asked for identification; court found 
-25-

no seizure, in part because the Aagents did not park their vehicle in 

such a way that would block Encarnacion-Galvez=s path if he chose 

to drive or walk away@). We noted earlier the importance in seizure 

analysis of setting forth guidelines that can be understood and applied 

by the officer. It is surely not reasonable, after the courts have for 

years found that blocking cars in their parking spots is coercive, to 

hold that Officer Pate seized defendant because he failed to block 

defendant in his parking space. See Chesternut, 486 U.S. at 574, 100 

L. Ed. 2d at 572, 108 S. Ct. at 1979-80 (noting that seizure standard 

Acalls for consistent application from one police encounter to the 

next@ so that the police may Adetermine in advance whether the 

conduct contemplated will implicate the Fourth Amendment@). In 

sum, we find nothing inherently coercive in the way Officer Pate 

parked his vehicle. 

The second factor relied upon by the appellate court was that 

Officer Pate shined a flashlight on defendant=s car as he approached. 

According to the appellate court, shining a flashlight is intrusive and 

is analogous to the Mendenhall factor of using language or tone of 

voice indicating that compliance is compelled.8

 357 Ill. App. 3d at 

422. Once again, precedent leads to the opposite result. It is well 

settled that the use of a flashlight to illuminate a vehicle located on a 

public way is not a fourth amendment search. Texas v. Brown, 460 

U.S. 730, 739-40, 75 L. Ed. 2d 502, 512, 103 S. Ct. 1535, 1542 

(1983) (AIt is likewise beyond dispute that Maples= action in shining 

his flashlight to illuminate the interior of Brown=s car trenched upon 

no right secured to the latter by the Fourth Amendment@); see also 1 

W. LaFave, Search & Seizure '2.2(b), at 461-62 (4th ed. 2004) 

(explaining rule and stating that Athe reason typically given is that the 

owner or operator of an automobile parked or being operated on a 

public thoroughfare does not have a justified expectation that such a 

common device as a flashlight would not be used during the 

nighttime to see what would be visible without such illumination 

during daylight hours@). Whether the use of a flashlight constitutes a 

fourth amendment seizure depends on whether the officer engaged in 

 

 8This is the only one of the three factors that the appellate court 

analogized to one of the Mendenhall factors. 
-26-

other coercive behavior. In People v. Holdman, 73 Ill. 2d 213, 220 

(1978), this court held that shining a light on a vehicle was not a 

Astop@ when there was no coercion or threat of coercion. See also 

People v. Erby, 213 Ill. App. 3d 657, 662 (1991) (shining a light on a 

parked vehicle not a stop absent coercion or threat of coercion). By 

contrast, in People v. Bunch, 207 Ill. 2d 7, 19 (2003), this court found 

that the defendant was seized when, after a police officer ordered him 

to exit a vehicle in which he had been a passenger, the officer had 

him stand next to the handcuffed and arrested driver, stood one foot 

away from him, shined a flashlight in his face, and said, AWhat=s your 

name? Where you coming from?@ Courts in other jurisdictions have 

also generally found that the use of a flashlight or a spotlight, without 

other coercive behavior, is insufficient to transform a consensual 

encounter into a seizure. See, e.g., State v. Stuart, 168 Ariz. 83, 86, 

811 P.2d 335, 338 (App. 1990) (shining spotlight on vehicle not a 

seizure); People v. Perez, 211 Cal. App. 3d 1492, 1496, 260 Cal. 

Rptr. 172, 174 (1989) (shining high beams and spotlights on vehicle 

not a detention; A[w]hile the use of high beams and spotlights might 

cause a reasonable person to feel himself the object of official 

scrutiny, such directed scrutiny does not amount to a detention@);

People v. Cascio, 932 P.2d 1381, 1388 (Colo. 1997) (officers= use of 

flashlights and a spotlight was a practical necessity because it was 

getting dark; no seizure because lights were not used in an 

intimidating manner); State v. Baker, 141 Idaho 163, 167, 107 P.3d 

1214, 1218 (2004) (using spotlight to illuminate the defendant=s car 

was not a seizure); Campbell v. State, 841 N.E.2d 624, 630 (Ind. App. 

2006) (shining of spotlight on defendant, who was standing next to a 

parked car, not a seizure); Commonwealth v. Eckert, 431 Mass. 591, 

595, 728 N.E.2d 312, 316 (2000) (Aby walking up to the defendant=s 

parked vehicle at the rest area, shining his flashlight inside and asking 

whether the defendant was >all set,= Trooper Shugrue did not engage 

in any conduct that requires constitutional justification@); State v. 

Clayton, 309 Mont. 215, 221, 45 P.3d 30, 35 (2002) (shining of 

spotlight on defendant=s vehicle not a seizure); State v. Justesen, 2002 

UT App 165, &15, 47 P.3d 936, 939 (officer=s use of take-down lights 

served to illuminate the area and was not a show of authority); State 

v. Young, 135 Wash. 2d 498, 513-14, 957 P.2d 681, 688-89 (1998) 

(use of spotlight not a seizure). When the use of a light is 

accompanied by coercive behavior, such as blocking a car in its 
-27-

parking space, the courts will be more likely to find a seizure. See, 

e.g., United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) 

(seizure found when officers= vehicles were in front of and behind 

defendant=s vehicle and had their take-down lights shining, and one 

officer approached with a flashlight shining and asked the vehicle=s 

occupants to put their hands in the air); Commonwealth v. 

Mulholland, 2002 PA Super. 59, &11, 794 A.2d 398, 401-02 (seizure 

found when police officer shined a spotlight on the defendant=s 

vehicle and parked his cruiser in such a way that the defendant could 

not exit the parking lot). 

Here, Officer Pate=s use of the flashlight was not accompanied by 

other coercive behavior. As we noted above, he parked his car past 

defendant=s vehicle so as not to block it in its space and did not 

activate his overhead flashing lights. He merely shined his flashlight 

on the car as he walked toward it. We view this behavior not as 

coercive, but as merely incident to a police officer=s performance of 

his job after dark. In Baker, the Idaho Supreme Court noted that a 

police officer=s use of a light at night allows him to gain more 

information about the situation he is confronting, which can 

significantly enhance officer safety. Baker, 141 Idaho at 167, 107 

P.3d at 1218. If we adopted the appellate court=s view that the use of 

a flashlight is inherently coercive and analogous to a tone of voice 

indicating that compliance is compelled, that would make a seizure of 

any nighttime encounter in which an officer uses a flashlight or 

spotlight. This would leave the officer with a dilemma that we are not 

prepared to require: A >an officer is not constitutionally required to 

choose between a consensual encounter in the dark or turning on a 

spotlight and thereby effectuating a detention that may not be 

supported by reasonable suspicion.= @ Baker, 141 Idaho at 167, 107 

P.3d at 1218. 

The final allegedly coercive factor cited by the appellate court 

was that Officer Pate approached defendant=s vehicle from the rear 

driver=s side, instead of merely walking straight up to the window Aas 

an ordinary citizen typically would.@ 357 Ill. App. 3d at 421. 

According to the appellate court, Officer Pate=s angle of approach 

conveyed the following message to defendant: A >I am interested in 

you and I will speak to you right now.= @ 357 Ill. App. 3d at 421. The 

appellate court majority agreed with the dissenting justice=s assertion 

that officers approach vehicles from the rear out of a concern for their 
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own safety. The appellate court concluded, however, that officer 

safety does not Aimmunize from constitutional scrutiny all actions 

taken in its name,@ and that Officer Pate=s angle of approach showed 

that he was treating defendant as a dangerous subject. 357 Ill. App. 

3d at 422-23. 

As with the other two factors, the appellate court failed to cite any 

authority in support of its position. Defense counsel conceded at oral 

argument that he could cite no authority, other than the appellate 

court=s 2-1 decision, for the proposition that a police officer 

effectuates a seizure by approaching a vehicle from the rear instead of 

from the side. We see nothing inherently coercive in Officer Pate=s 

angle of approach, and we agree with the dissenting justice=s 

observation that a private citizen=s angle of approach to a vehicle 

would depend upon where he began his approach. In its amicus brief, 

the Fraternal Order of Police confirms that law enforcement officers 

are trained to approach automobiles from the rear driver=s side 

because this method of approach provides the officer with the most 

protection. We disagree with the appellate court=s conclusion that a 

police officer acts in a coercive manner simply because he 

approaches in a manner designed to enhance his own safety. 

Moreover, it is not true that Officer Pate=s approach necessarily 

meant that he viewed defendant as a dangerous suspect. It seems 

obvious that officers are trained to approach all vehicles in this 

manner because they have no way of knowing when they will 

encounter a dangerous person. As with its position on the use of a 

flashlight, the appellate court would leave a police officer with a bad 

choice. Either he must stroll up to the side of the vehicle with no 

concern for his own safety, or he must approach from the rear driver=s 

side and risk effectuating a detention that is not supported by a 

sufficient reasonable, articulable suspicion of criminal activity. 

Assuming that the police will always take their own safety into 

account, the appellate court=s position would mean that every

approach of a police officer to a vehicle will constitute a seizure. This 

is exactly the kind of result that Justice Stewart warned against in 

Mendenhall: 

AMoreover, characterizing every street encounter between 

a citizen and the police as a >seizure,= while not enhancing any 

interest secured by the Fourth Amendment, would impose 

wholly unrealistic restrictions upon a wide variety of 
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legitimate law enforcement practices. The Court has on other 

occasions referred to the acknowledged need for police 

questioning as a tool in the effective enforcement of the 

criminal laws.@ Mendenhall, 466 U.S. at 554, 64 L. Ed. 2d at 

509, 100 S. Ct. at 1877. 

In sum, it is clear that Officer Pate did not effectuate a seizure of 

defendant before observing an open bottle and signs of defendant=s 

intoxication. Rather, precedent shows that Officer Pate acted exactly 

as a well-trained police officer should when he wishes to question a 

person seated in a parked vehicle without effectuating a seizure. He 

drove past defendant=s vehicle so as not to block it in its space. He 

did not turn on his overhead flashing lights to signal that defendant=s 

compliance was expected. He did not use coercive language or a 

coercive tone of voice, he did not touch defendant, and he did not 

display his weapon. He approached from the rear driver=s side, as he 

was trained to do, and he used a flashlight because it was nighttime. 

Objectively viewed, nothing Officer Pate did would communicate to 

a reasonable person, innocent of any wrongdoing, that he was not free 

to decline to answer Officer Pate=s questions or otherwise go about 

his business. We reject the position of the appellate court that if an 

officer patrolling in the middle of the night sees something about a 

vehicle that appears out of the ordinary, he must walk casually up to 

the side window in the dark, with no concern for his own safety and 

no illumination, or be held to have committed a seizure. The 

touchstone of the fourth amendment is reasonableness (United States 

v. Knights, 534 U.S. 112, 118, 151 L. Ed. 2d 497, 505, 122 S. Ct. 587, 

591 (2001)), and the consequences that would follow from the 

appellate court=s opinion are not reasonable. 

 CONCLUSION 

Because no seizure occurred until after Officer Pate had a 

reasonable, articulable suspicion that defendant was intoxicated while 

in control of a motor vehicle, the circuit court erred in granting the 

motion to suppress. We therefore reverse the judgments of the 

appellate court and the circuit court and remand the cause to the 

circuit court for further proceedings. 

Appellate court judgment reversed; 
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circuit court judgment reversed; 

cause remanded. 

JUSTICE BURKE took no part in the consideration or decision of 

this case.