Docket No. 103796.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

RAYMOND HARRIS, Appellee.

Opinion filed March 20, 2008.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Defendant, Raymond E. Harris, was a passenger in a car that was

stopped by a police officer after the driver made an illegal left turn. In

the course of the traffic stop, the officer asked defendant for his

identification and he complied with the request. The officer conducted

a computer search that revealed an outstanding warrant and placed

defendant under arrest. The search incident to arrest revealed cocaine

and drug paraphernalia in the pocket of defendant’s jacket.

Defendant’s motion to suppress evidence was denied.

After a jury trial in the circuit court of Will County, defendant was

convicted of unlawful possession of a controlled substance. 720 ILCS

570/402(c) (West 1996). The appellate court reversed on the basis

that defendant’s compliance with the officer’s request for
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identification was not voluntary; therefore, any evidence discovered

as a result should have been suppressed. People v. Harris, 325 Ill.

App. 3d 262, 266 (2001).

This court allowed the State’s petition for leave to appeal and

affirmed the appellate court’s judgment, although on different

grounds. People v. Harris (Harris I), 207 Ill. 2d 515 (2003). On the

same day, this court filed its opinion in People v. Caballes (Caballes

I), 207 Ill. 2d 504 (2003).

The United States Supreme Court granted the State’s petitions for

certiorari in both Harris and Caballes. In Caballes, the Court filed an

opinion and vacated this court’s judgment, remanding the matter for

further proceedings. Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d

842, 125 S. Ct. 834 (2005). In Harris, the Court summarily vacated

this court’s judgment and remanded for reconsideration in light of its

decision in Caballes. Illinois v. Harris, 543 U.S. 1135, 161 L. Ed. 2d

94, 125 S. Ct. 1292 (2005).

This court subsequently filed a second opinion in People v.

Caballes (Caballes II), 221 Ill. 2d 282 (2006). We then remanded the

present case to the appellate court for reconsideration in light of

Illinois v. Caballes and this court’s opinion in Caballes II.

On remand, the appellate court stood by its earlier judgment. No.

3–00–0190 (unpublished order under Supreme Court Rule 23). We

have again allowed the State’s petition for leave to appeal under Rules

315 and 604(a)(2) (210 Ill. 2d Rs. 315, 604(a)(2)).

BACKGROUND

On the afternoon of September 27, 1997, a Will County sheriff’s

deputy observed a 1991 black Firebird make an illegal left turn. He

stopped the car and asked the driver for his license and proof of

insurance. The driver stated that he did not have his license with him,

but gave the officer a name and date of birth. The officer transmitted

the information to county dispatch, which determined that the name

and birthdate did not correspond to a valid license. When confronted

with this information, the driver admitted his true identity and that his

license was either suspended or revoked.

At the hearing on defendant’s motion to quash arrest and suppress

evidence, the officer testified that when he asked defendant for
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identification, it was in keeping with his usual practice when arresting

the driver of a vehicle. If a passenger in the vehicle produces a valid

driver’s license, he allows the passenger to drive the vehicle away,

thus avoiding the expense and inconvenience of having the vehicle

towed. He further testified that when he asked to see defendant’s

identification, he did not suspect him of any wrongdoing. He did not,

however, ask defendant if he had a valid driver’s license or if he

wanted to take responsibility for driving the car away from the scene.

Defendant complied with the officer’s request, handing him a state

identification card. The officer returned to his squad car and

conducted a computerized search of both the driver’s and the

defendant’s information. As a result of this search, he discovered an

outstanding arrest warrant for defendant for failure to appear in court.

The officer placed defendant under arrest. A search incident to

arrest revealed a pea-sized rock of cocaine in defendant’s jacket

pocket, along with a copper scrubbing pad typically used as a device

for heating and smoking cocaine. A search of the car revealed another

pea-sized rock of cocaine. The driver was also placed under arrest and

the car was impounded.

At trial, the officer again testified that he requested identification

from the defendant to determine whether he was legally able to drive

the car so that it would not have to be towed away. He also

acknowledged that his written report stated that the car was legally

parked. Nevertheless, he testified that in the absence of a passenger

eligible to drive the vehicle, he would have arranged for the car to be

towed and done an inventory search, which would have revealed the

cocaine in the backseat. The officer further stated that he asked the

defendant for identification after the driver admitted that his license

was suspended or revoked, but before he verified this fact. Thus, the

second time he returned to his squad car, it was for the purpose of

running checks on both occupants of the car.

The jury found defendant guilty of unlawful possession of a

controlled substance. Defendant filed a posttrial motion in which he

argued that the evidence was not sufficient to prove him guilty beyond

a reasonable doubt. The posttrial motion did not, however, reassert his

earlier argument that the evidence found in his pocket should have

been suppressed. The trial court denied the posttrial motion and
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sentenced defendant to 28 days in jail, with credit for the 28 days

previously served, a term of 24 months’ probation, and various fines.

The State argued on appeal that defendant forfeited the

suppression issue because he failed to raise it in his posttrial motion.

The appellate court acknowledged defendant’s forfeiture of the issue,

but stated that it deemed the issue “sufficiently significant to merit our

review, despite defendant’s failure to properly preserve it below.”

Harris, 325 Ill. App. 3d at 265. On the merits, the appellate court

found that defendant’s motion to suppress should have been granted.

Harris, 325 Ill. App. 3d at 267.

This court granted the State’s petition for leave to appeal. As the

appellant before this court, however, the State did not argue that

issues related to the suppression motion had been forfeited by

defendant. This court addressed the issues on the merits, with no

discussion of forfeiture.

As noted above, this court’s opinion in Harris I was subsequently

vacated by the United States Supreme Court. On remand for

reconsideration, the appellate court concluded that the judgments of

the Supreme Court in Caballes and this court in Caballes II have no

bearing on the present case. No. 3–00–0190 (Harris II) (unpublished

order under Supreme Court Rule 23).

ISSUES

The parties disagree as to the issue or issues properly before this

court. The State, as appellant, argues that defendant has forfeited

review of all issues related to the trial court’s ruling on his motion to

suppress by failing to raise such issues in his posttrial motion.

Forfeiture aside, the State argues that the sole question for this court

is whether, in the absence of reasonable suspicion, the fourth

amendment permits a police officer to conduct a warrant check

regarding a passenger during a lawful traffic stop. In Harris I, a

majority of this court held that such a warrant check was outside the

scope of the traffic stop and, therefore, unreasonable. Harris I, 207 Ill.

2d at 530. The dissenting justices would have found the warrant check

permissible. Harris I, 207 Ill. 2d at 537-38 (Fitzgerald, J., dissenting,

joined by Thomas and Garman, JJ.). As the judgment in Harris I has
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been vacated and the cause remanded for reconsideration, this

question remains unanswered by this court.

Defendant argues that the proper issue for our consideration is

whether the officer’s request for identification violated his fourth

amendment rights because his compliance was not voluntary. This is

the issue addressed by the appellate court in its published opinion in

Harris I, 325 Ill. App. 3d at 267, and its order in Harris II, No.

3–00–0190 (unpublished order under Supreme Court Rule 23).

We first address the forfeiture question and conclude that it is

necessary to reach the merits of both issues. Logic would seem to

dictate that the issues be decided in chronological order, determining

whether the police officer’s request for identification violated

defendant’s fourth amendment rights before considering whether the

warrant check was proper. Nevertheless, we treat the warrant check

issue first because the State, as appellant, argues only this issue. Only

if the State’s position regarding the warrant check is correct is it

necessary to revisit the other issue, because the warrant check would

not have been possible if the officer had not first obtained the

defendant’s identification information. See Harris I, 207 Ill. 2d at 537

(Fitzgerald, J., dissenting, joined by Thomas and Garman, JJ.) (noting

that “where the identity of the passenger is unknown, the officer

cannot run a check for outstanding warrants unless the passenger

assents to the officer’s request for identification”).

FORFEITURE

To preserve an issue for appeal, both a timely objection at trial and

a written posttrial motion raising the issue are required. People v.

Enoch, 122 Ill. 2d 176, 186 (1988). This long-standing rule is

consistent with section 116–1 of the Code of Criminal Procedure of

1963 (725 ILCS 5/116–1 (West 2006)) (motion for a new trial), and

serves the purpose of allowing the trial court “ ‘the opportunity to

grant a new trial, if warranted.’ ” Enoch, 122 Ill. 2d at 186, quoting

People v. Caballero, 102 Ill. 2d 23, 31-32 (1984).

Thus, before reaching the merits of either issue, we must address

the State’s claim that because defendant failed to raise the suppression

issue in his posttrial motion, he forfeited consideration of the
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underlying issues–the request for identification and the warrant

check–on appeal.

The present case presents an unusual set of circumstances. In

Harris I, the State, as the appellant before this court, failed to argue

that the appellate court erred by not giving effect to defendant’s

forfeiture, thus forfeiting the forfeiture argument. See People v.

Williams, 193 Ill. 2d 306, 347 (2000) (noting that the forfeiture rule

is applicable to the State as well as to a defendant in a criminal

proceeding). Instead, the State prevailed on the merits of the request

for identification issue, but unsuccessfully argued the merits of the

warrant-check issue. The State then obtained a writ of certiorari and

was prepared to argue the merits of the warrant-check issue to the

United States Supreme Court. The Supreme Court vacated this

court’s judgment in Harris I and remanded for reconsideration in light

of its decision in Caballes. The appellate court did not engage in such

reconsideration.

 We conclude that it falls to us to follow the Supreme Court’s

directive to reconsider this case in light of Caballes, notwithstanding

earlier forfeitures by both parties. We, therefore, address the issues on

the merits.

STANDARD OF REVIEW

When 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 are reviewed for

clear error, giving 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. Thus, this court has held that a reviewing

court may reject the trial court’s findings of fact only if they are

against the manifest weight of the evidence. People v. Sorenson, 196

Ill. 2d 425, 431 (2001).

A reviewing court, however, may assess the established facts in

relation to the issues and may draw its own conclusions when deciding

what relief, if any, should be granted. People v. Pitman, 211 Ill. 2d

502, 512 (2004). Accordingly, we review de novo the trial court’s
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ultimate ruling as to whether suppression is warranted. 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.

ANALYSIS

This court has previously observed that a passenger is seized for

fourth amendment purposes when the vehicle in which he is riding is

subjected to a traffic stop. People v. Bunch, 207 Ill. 2d 7, 13 (2003).

The Supreme Court has made similar observations. See, e.g.,

Berkemer v. McCarty, 468 U.S. 420, 436-37, 82 L. Ed. 2d 317, 332-

33, 104 S. Ct. 3138, 3148 (1984) (“ ‘stopping an automobile and

detaining its occupants constitute a “seizure” ’ ” for fourth amendment

purposes, “ ‘even though the purpose of the stop is limited and the

resulting detention quite brief’ ”), quoting Delaware v. Prouse, 440

U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396 (1979).

Subsequent to this court’s decision in Harris I, the Supreme Court

decided the case of Brendlin v. California, in which it definitively

answered the question whether a passenger of a stopped vehicle is

seized for fourth amendment purposes. Brendlin v. California, 551

U.S. ___, ___, 168 L. Ed. 2d 132, 138-39, 127 S. Ct. 2400, 2406

(2007) (acknowledging that the Court has said “over and over in dicta

that during a traffic stop an officer seizes everyone in the vehicle”).

Applying the rule of Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d

389, 111 S. Ct. 2382 (1991), the Court concluded in Brendlin that

when a vehicle is subject to a traffic stop, “any reasonable passenger”

would understand “the police officers to be exercising control to the

point that no one in the car was free to depart without police

permission.” Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at 139, 127 S.

Ct. at 2406-07. Thus, the Court held, not only the driver but also any

passengers are seized for fourth amendment purposes when the

vehicle in which they are traveling is subjected to a traffic stop. The

Court noted that this conclusion “comports with the views of all nine

Federal Courts of Appeals, and nearly every state court, to have ruled

on the question.” Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at 140,

127 S. Ct. at 2407-08, citing, inter alia, Bunch, 207 Ill. 2d at 13. The

Court then rejected the State’s argument that a seized passenger may

not bring a fourth amendment challenge to the legality of the stop

itself. Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at 140, 127 S. Ct. at
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2408. Because the State conceded that the police had no adequate

justification for the stop of the car in which Brendlin was riding, and

because Brendlin was seized “from the moment [the] car came to a

halt on the side of the road,” it was error for the state court to deny

the suppression motion on the ground that the seizure did not occur

until the formal arrest. Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at

143-44, 127 S. Ct. at 2410.

In the present case, the initial stop was lawful, because the officer

had probable cause to stop the car that he observed making an illegal

left turn. Unlike Brendlin, who was a passenger in a car stopped

without probable cause, defendant in the present case was lawfully

seized. The issues presented in this case involve the remainder of the

encounter: when a person is lawfully seized, but the police lack

individualized reasonable suspicion, may the officer request that the

person provide identification and then use that information to conduct

a warrant check?

The Warrant Check

The State argues that “a straightforward application of Illinois v.

Caballes” dictates that this court must adopt the position held by the

dissenters in Harris I–that when an officer knows a passenger’s

identity, either from previous contact with the individual or after

having lawfully requested identification from the passenger, “a warrant

check, without more, does not somehow change the ‘fundamental

nature of the stop.’ ” Harris I, 207 Ill. 2d at 537 (Fitzgerald, J.,

dissenting, joined by Thomas and Garman, JJ.). Thus, the State

argues, a warrant check need not be related to the purpose of the stop

or supported by reasonable, articulable suspicion of criminal conduct

by the passenger. See Harris I, 207 Ill. 2d at 539 (Fitzgerald, J.,

dissenting, joined by Thomas and Garman, JJ.).

The State correctly notes that a warrant is a matter of public

record and, therefore, the subject of the warrant has no expectation of

privacy in the information contained therein. See Gist v. Macon

County Sheriff’s Department, 284 Ill. App. 3d 367, 377 (1996)

(dismissing plaintiff’s defamation action against publishers of “Crime

Stoppers” flyer that accurately published information available in

public records).
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The State then suggests an analogy between the existence of a

warrant and an individual’s status as a registered sex offender, citing

this court’s decision in People v. Cornelius, 213 Ill. 2d 178 (2004)

(statutorily mandated registration as a sex offender creates a public

record; dissemination of that record via the Internet does not violate

any constitutional right of the registered individual).

Finally, the State relies on the decision of the appellate court in

People v. Roberson, 367 Ill. App. 3d 193 (2006), a post-Caballes

decision involving a warrant check on a vehicle passenger during a

lawful traffic stop. Roberson was the driver of a car stopped for a

traffic violation. The officer asked both Roberson and his passenger

for their names, which they provided. A warrant check revealed an

outstanding arrest warrant for the passenger, whom the officer then

arrested. When a search of the car incident to the arrest of the

passenger revealed contraband, the officer also arrested Roberson.

The trial court, relying on this court’s opinion in Harris I, granted

Roberson’s motion to suppress. The appellate court, however, noted

that Harris I had subsequently been vacated by the Supreme Court.

The appellate court further concluded that Caballes requires the

opposite result. Roberson, 367 Ill. App. 3d at 201. Because the

warrant check neither unreasonably prolonged the duration of the

traffic stop nor infringed upon the passenger’s legitimate interest in

privacy, it did not violate the fourth amendment. The evidence

discovered in the car was, therefore, admissible against both the driver

and the passenger. Roberson, 367 Ill. App. 3d at 201.

Defendant makes no argument on the issue of the warrant check.

The appellate court, on remand for reconsideration in light of

Caballes, found no guidance whatsoever in that opinion. Instead, the

appellate court distinguished the present case from Caballes on

several bases: this case does not involve a dog sniff; defendant was the

passenger, not the driver, of the stopped vehicle; and defendant raises

no claims under the Illinois Constitution.

Subsequently, in People v. Andrews, 372 Ill. App. 3d 960, 962-63

(2007), the appellate court applied the analytical framework of People

v. Gonzalez, 204 Ill. 2d 220 (2003), to conclude that a warrant check

of a passenger whose identity was known to the officer was outside

the scope of the stop. Because the warrant check “could well have

lengthened the duration of the detention if the officer had to wait for
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the results of the check,” the court held that the warrant check

“changed the fundamental nature of the traffic stop,” converting it

“into an inquiry into defendant’s past misconduct.” Andrews, 372 Ill.

App. 3d at 963. The court further concluded that this result was

consistent with the Supreme Court’s decision in Caballes because the

case did not involve a dog sniff and because the defendant was not the

driver of the stopped vehicle. Andrews, 372 Ill. App. 3d at 963.

The dissenting justice noted the absence of evidence to support an

allegation that the warrant search prolonged the duration of the traffic

stop. Andrews, 372 Ill. App. 3d at 965 (Schmidt, J., dissenting). In

addition, the dissenting justice would have found the warrant check

permissible under Caballes. Andrews, 372 Ill. App. 3d at 964

(Schmidt, J., dissenting).

The appellate court is correct that the specific issue in Caballes

was “[w]hether the Fourth Amendment requires reasonable,

articulable suspicion to justify using a drug-detection dog to sniff a

vehicle during a legitimate traffic stop.” Caballes, 543 U.S. at 407,

160 L. Ed. 2d at 846, 125 S. Ct. at 837. The appellate court, however,

in both Harris II and Andrews, overlooked the obvious analogy

between a dog sniff and a warrant check.

By vacating this court’s judgment in Harris I and remanding for

reconsideration in light of Caballes, the Supreme Court directed that

an Illinois court conduct the same type of inquiry that it applied to dog

sniffs to determine whether a warrant check performed during a

concededly lawful traffic stop compromises a constitutionally

protected interest by revealing legitimately private information. See

Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837.

For the reasons that follow, we reverse the appellate court’s judgment

in the present case and overrule its judgment in Andrews.

Caballes was seized when the car he was driving was stopped for

speeding. Defendant was seized when the car in which he was riding

was stopped after making an illegal left turn. Both stops were based

on probable cause. In each case, the occupants of the vehicle were

lawfully seized. See Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at 139-

40, 127 S. Ct. at 2407.

Nevertheless, “a seizure that is lawful at its inception can violate

the Fourth Amendment if its manner of execution unreasonably
 

1Although Cox is still “good law” for this limited proposition, this court

subsequently overruled Cox in part in People v. Bew, No. 104084 (March

20, 2008).

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infringes interests protected by the Constitution.” Caballes, 543 U.S.

at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837. A seizure can become

unlawful, for example, “if it is prolonged beyond the time reasonably

required” to complete the traffic stop. Caballes, 543 U.S. at 407, 160

L. Ed. 2d at 846, 125 S. Ct. at 837, citing People v. Cox, 202 Ill. 2d

462 (2002) (dog sniff conducted during traffic stop was impermissible

because it occurred after an overly long detention of the driver).1

Thus, the Court noted this court’s conclusion that the duration of the

traffic stop in Caballes “was entirely justified by the traffic offense and

the ordinary inquiries incident to such a stop,” but observed that the

seizure would have become unlawful “if the dog sniff had been

conducted while [Caballes] was being unlawfully detained.” Caballes,

543 U.S. at 408, 160 L. Ed. 2d at 846-47, 125 S. Ct. at 837.

Defendant has not argued that the computerized warrant check,

conducted at the same time as the officer’s check of the status of the

driver’s license, unreasonably prolonged his seizure.

After addressing the duration of the seizure, the Court in Caballes

then stated that conducting a dog sniff “would not change the

character of a traffic stop that is lawful at its inception and otherwise

executed in a reasonable manner, unless the dog sniff itself infringed

[the seized individual’s] constitutionally protected interest in privacy.”

Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837.

Similarly, unless a warrant check itself infringes upon a seized

individual’s constitutionally protected interest in privacy, an officer

may perform a warrant check during a traffic stop, so long as it does

not unreasonably prolong the duration of the stop.

With respect to the seized individual’s privacy interests, the Court

concluded in Caballes that because a dog sniff can reveal only the

possession of contraband, it does not compromise any legitimate

interest in privacy and is not a search subject to the fourth amendment.

Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837.

The Court compared the dog sniff, which does not reveal any

legitimately private information, to the use of a thermal-imaging
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device to detect the presence of marijuana plants in a home. Caballes,

543 U.S. at 409, 160 L. Ed. 2d at 847-48, 125 S. Ct. at 838, citing

Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121 S. Ct.

2038 (2001). InKyllo, the Court found that the warrantless use of the

device constituted an unlawful search because it was capable of

revealing lawful activity in which the occupants of the home had a

privacy interest. Kyllo, 533 U.S. at 38, 150 L. Ed. 2d at 104-05, 121

S. Ct. at 2045. In contrast, “[a] dog sniff conducted during a

concededly lawful traffic stop that reveals no information other than

the location of a substance that no individual has any right to possess

does not violate the Fourth Amendment.” Caballes, 543 U.S. at 410,

160 L. Ed. 2d at 848, 125 S. Ct. at 838.

As noted above, a warrant is a matter of public record. An

individual has no reasonable expectation of privacy in the fact that a

court has entered a written order commanding his arrest. 725 ILCS

5/107–1 (West 2002). A warrant check does not implicate legitimate

privacy interests because, like a dog sniff, it does not reveal any

legitimately private activity or information, or result in any physical

contact with the individual or his property. See Caballes, 543 U.S. at

409-10, 160 L. Ed. 2d at 848, 125 S. Ct. at 838.

We, therefore, conclude that this court’s treatment of the warrantcheck issue in Harris I is inconsistent with the Supreme Court’s

analysis in Caballes. We hold that a warrant check on the occupants

of a lawfully stopped vehicle does not violate fourth amendment

rights, so long as the duration of the stop is not unnecessarily

prolonged for the purpose of conducting the check and the stop is

“otherwise executed in a reasonable manner” (Caballes, 543 U.S. at

408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837).

Applying this rule to the facts of the present case, we find, first,

that the seizure of defendant was initially lawful; second, the seizure

was of reasonable duration; and, third, the warrant check did not

infringe upon a constitutionally protected privacy interest. Thus, the

warrant check did not violate defendant’s right under the fourth

amendment to be free from unreasonable search and seizure.

Therefore, unless the officer’s request for identification was improper,
 

2We do not consider whether the officer’s request for identification should

be analyzed in the same manner as a dog sniff or a warrant check because

the State has not argued that Caballes is applicable to this issue.

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the evidence discovered as a result of the warrant check and

subsequent arrest was properly admitted at trial.2

Continued Vitality of Gonzalez

In Gonzalez, this court concluded that a traffic stop is analogous

to a Terry investigatory stop and, therefore, the reasonableness of

police conduct during a traffic stop may be judged by reference to

Terry’s “dual inquiry.” Gonzalez, 204 Ill. 2d at 226-28, citing Terry

v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The

two prongs of this inquiry are: (1) whether the stop was justified at its

inception and (2) whether the officer’s actions during the course of the

stop were reasonably related in scope to the circumstances that

initially justified the stop. Gonzalez, 204 Ill. 2d at 228. This court then

further defined the scope inquiry, determining that the allowable scope

of a stop could be exceeded either by impermissibly prolonging the

detention or by fundamentally altering the nature of the stop.

Gonzalez, 204 Ill. 2d at 235.

Gonzalez was a passenger in a vehicle that was subject to a lawful

traffic stop. Thus, in Gonzalez, this court adopted the Terry-based

inquiry not only with respect to the fourth amendment rights of

drivers, but also with respect to the rights of passengers.

The State argues that this court’s decision in Gonzalez was

implicitly overruled by the Supreme Court’s decision in Caballes. We

must resolve this question before addressing the request for

identification issue because our analysis of the issue in Harris I was

guided by the Gonzalez framework.

The State asserts three bases for finding that Gonzalez has been

overruled. The first two are closely related: first, if application of

Caballes leads to a result different on the warrant-check issue from

that this court reached in Harris I by applying the Gonzalez

framework, then Gonzalez must have been implicitly overruled by

Caballes; and second, Justice Ginsburg’s dissent in Caballes

acknowledges that the Court rejected the application of Terry
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principles to police conduct during a traffic stop. The State’s final

argument is that Gonzalez was wrong when it was decided because

Terry principles are not applicable to a traffic stop based on probable

cause.

Caballes establishes two principles governing the analysis of

police conduct during a traffic stop. First, a seizure that is lawful at its

inception can become unlawful “if it is prolonged beyond the time

reasonably required” to complete the purpose of the stop. Caballes,

543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837. Second, so

long as the traffic stop is “otherwise executed in a reasonable

manner,” police conduct does “not change the character” of the stop

unless the conduct itself infringes upon the seized individual’s

“constitutionally protected interest in privacy.” Caballes, 543 U.S. at

408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. 

What we have come to call the “scope” prong of the Gonzalez

inquiry contains two parts–whether the duration of the stop was

impermissibly prolonged and whether the police conduct altered the

fundamental nature of the stop. Gonzalez, 204 Ill. 2d at 235. The

duration prong clearly survives Caballes. Caballes, 543 U.S. at 407,

160 L. Ed. 2d at 846, 125 S. Ct. at 837.

The continued vitality of the “alteration of the fundamental nature

of the stop” prong is in question. Caballes may be read as holding that

only conduct that infringes upon a constitutionally protected privacy

interest impermissibly changes the character of the stop. Indeed,

Justice Ginsburg, in her dissent, argued that the majority erred by

considering only the duration of the seizure and abandoning any

consideration of the manner in which the stop was conducted.

Caballes, 543 U.S. at 421, 160 L. Ed. 2d at 855, 125 S. Ct. at 845.

(Ginsburg, J., dissenting, joined by Souter, J.).

On the other hand, the Court stated in Caballes that conducting

a dog sniff “would not change the character of a traffic stop that is

lawful at its inception and otherwise executed in a reasonable manner,

unless the dog sniff itself infringed [the seized individual’s]

constitutionally protected interest in privacy.” (Emphasis added.)

Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837.

Another reading of Caballes might be that the phrase “and otherwise

executed in a reasonable manner” (Caballes, 543 U.S. at 408, 160 L.
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Ed. 2d at 847, 125 S. Ct. at 837), preserves some role for the second

“fundamental nature of the stop” prong of the Terry/Gonzalez inquiry.

We need not resolve this question, however, by careful parsing of

the language of Caballes, because Gonzalez is unequivocally

overruled by the Supreme Court’s subsequent decision in Muehler v.

Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1464 (2005).

Muehler involved the detention and questioning of the occupants

of a house at which the police executed a search warrant. The police

had reason to believe that a gang member who had been involved in

a drive-by shooting was residing in the house. The warrant authorized

a search of the premises for deadly weapons and evidence of gang

membership. An Immigration and Naturalization Service (INS) officer

accompanied the police officers. The occupants of the house were

handcuffed and detained while the warrant was being executed,

pursuant to Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340,

101 S. Ct. 2587 (1981) (officers executing a search warrant for

contraband may detain the occupants of the premises while the search

is being conducted). During this period of detention, the INS officer

asked Iris Mena for her name, date of birth, place of birth, and

immigration status. He also asked for documentation of her

immigration status. Mena’s papers confirmed that she was a

permanent resident of this country. Muehler, 544 U.S. at 96, 161 L.

Ed. 2d at 305, 125 S. Ct. at 1468.

Mena subsequently filed a section 1983 lawsuit (42 U.S.C. §1983)

against the officers, alleging violations of her rights under the fourth

amendment based on (1) the use of handcuffs and (2) the INS officer’s

questioning her about her immigration status in the absence of

reasonable suspicion of wrongdoing on her part. The jury awarded

actual and punitive damages and the Court of Appeals affirmed on

both counts. Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir.

2003). 

The United States Supreme Court reversed. For our purposes,

only the Court’s resolution of the second claim is relevant. The Court

noted its repeated prior holding that “ ‘mere police questioning does

not constitute a seizure.’ ” Muehler, 544 U.S. at 100, 161 L. Ed. 2d

at 308, 125 S. Ct. at 1471, quoting Bostick, 501 U.S. at 434, 115 L.

Ed. 2d at 398, 111 S. Ct. at 2386. Court quoted Bostick further,

stating that:
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“ ‘[E]ven when officers have no basis for suspecting a

particular individual, they may generally ask questions of that

individual; ask to examine the individual’s identification; and

request consent to search his or her luggage.’ ” Muehler, 544

U.S. at 100, 161 L. Ed. 2d at 308-09, 125 S. Ct. at 1471,

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

111 S. Ct. at 2386.

Applying this rule to Mena, the Court concluded that because her

detention was not prolonged by the questioning, “there was no

additional seizure within the meaning of the Fourth Amendment.”

Thus, the officer “did not need reasonable suspicion to ask Mena for

her name, date and place of birth, or immigration status.” Muehler,

544 U.S. at 101, 161 L. Ed. 2d at 309, 125 S. Ct. at 1471.

The Court then referred to its recent decision in Caballes, noting,

first, its holding in that case that a dog sniff is not a search subject to

the fourth amendment and, second, its rejection of the notion that a

dog sniff, which need not be justified by reasonable suspicion, causes

a “shift in purpose” that converts a lawful traffic stop into a drug

investigation. Muehler, 544 U.S. at 101, 161 L. Ed. 2d at 309, 125 S.

Ct. at 1471, citing Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847,

125 S. Ct. at 837.

Applying these principles to Mena, the Court concluded that her

detention was lawful at the time the immigration officer questioned

her regarding her immigration status (there having been no finding that

the duration was unduly prolonged), and that “no additional Fourth

Amendment justification” for the inquiry was required. Muehler, 544

U.S. at 101, 161 L. Ed. 2d at 309, 125 S. Ct. at 1471-72. 

Similarly, the dog sniff performed during Caballes’ traffic stop did

not cause an additional seizure or implicate constitutionally protected

privacy interests, and, therefore, no additional justification in the form

of reasonable suspicion was required. Caballes, 543 U.S. at 408, 160

L. Ed. 2d at 847, 125 S. Ct. at 837.

In light of Muehler, it becomes clear that Caballes rejected

reasoning that led to this court’s adoption of the “fundamental

alteration of the nature of the stop” portion of the “scope” prong of

Gonzalez. All that remains is the duration prong. During a lawful

seizure, as occurred in both Muehler and Caballes, the police may ask
-17-

questions unrelated to the original detention and are not required to

form an independent reasonable suspicion of criminal activity before

doing so. Further, the Court’s reliance on Bostick in Muehler indicates

that the encounter should be analyzed under Bostick, even when the

person being questioned has already been seized. Muehler, 544 U.S.

at 101, 161 L. Ed. 2d at 309, 125 S. Ct. at 1471 (mere questioning of

a seized individual does not constitute an “additional seizure within

the meaning of the Fourth Amendment”). 

Finally, we note that the applicability of Muehler, which did not

involve a traffic stop, to the facts of the present case, which does

involve a traffic stop, cannot be questioned. First, Muehler itself relied

on Caballes–a traffic stop case–thus illustrating that the principles

being applied are relevant without regard to the factual basis for the

encounter between the police and the individual.

Second, numerous federal and state courts have concluded that

Muehler is applicable to both drivers and passengers who are seized

during a lawful traffic stop. See, e.g., United States v. SorianoJarquin, 492 F.3d 495 (4th Cir. 2007); United States v. OliveraMendez, 484 F.3d 505 (8th Cir. 2007); United States v. Mendez, 476

F.3d 1077 (9th Cir. 2007); United States v. Stewart, 473 F.3d 1265

(10th Cir. 2007); United States v. Hernandez, 418 F.3d 1206 (11th

Cir. 2005); United States v. Singh, 415 F.3d 288 (2d Cir. 2005);

Salmeron v. State, 280 Ga. 735, 632 S.E.2d 645 (2006); State v.

Baxter, 144 Idaho 672, 168 P.3d 1019 (App. 2007); Marinaro v.

State, 163 P.3d 833 (Wyo. 2007). Indeed, our own appellate court has

reached this same conclusion. People v. Starnes, 374 Ill. App. 3d 329

(2007); People v. Ramsey, 362 Ill. App. 3d 610 (2005). 

Third, the parallels between a lawful traffic stop and the execution

of a search warrant are clear. Both are based on probable cause. The

occupants of the vehicle and the occupants of the premises covered by

the warrant are lawfully seized for the duration of the stop or warrant

search, so long as the duration is not unreasonably prolonged.

Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at 138-39, 127 S. Ct. at

2406; Summers, 452 U.S. at 705, 69 L. Ed. 2d at 351, 101 S. Ct. at

2595. The same principles that permit the questioning of Mena

regarding her immigration status without the requirement of

individualized reasonable suspicion permit an officer to request the

passenger in a stopped vehicle to provide identification.
 

3This court has employed the Gonzalez framework in two subsequent

decisions. In Bunch, we found that the officer’s questioning of the defendant

“prolonged defendant’s detention beyond the completion of the purpose of the

stop.” Bunch, 207 Ill. 2d at 17. Therefore, the overruling of Gonzalez does

not undermine the result in Bunch.

In People v. Moss, 217 Ill. 2d 511, 528 (2005), we concluded that the

officer impermissibly expanded the purpose of the stop in violation of the

scope prong of Gonzalez when he requested permission to search the

defendant’s truck. The defendant, however, was serving a period of

mandatory supervised release. Thus, while the request to search was not

“reasonably related to the purpose of the traffic stop,” it was reasonable in

light of defendant’s status. Moss, therefore, is unaffected by our overruling

of Gonzalez.

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We, therefore, overrule Gonzalez to the extent that it holds that

the reasonableness of a traffic stop must be judged not only by its

duration, but by the additional criterion of whether the actions of the

officer alter the fundamental nature of the stop.3

The duration prong of the inquiry predates our decision in

Gonzalez and has been reaffirmed in both Caballes and Muehler. It,

therefore, survives as the sole focus of the scope inquiry. See

Gonzalez, 204 Ill. 2d at 230, citing United States v. Shabazz, 993 F.2d

431, 436 (5th Cir. 1993) (rejecting premise that questioning by a

police officer that is unrelated to the purpose of a traffic stop is itself

a fourth amendment violation).

Request for Identification

As noted above, the warrant check was possible only because the

officer learned defendant’s name when he presented a state

identification card in response to the officer’s request for

identification. Thus, if the manner in which he obtained this

information was improper, the motion to suppress should have been

granted.

In Harris I, this court was unanimous in its conclusion that the

officer’s request for identification did not violate defendant’s rights

under the fourth amendment. The majority applied the Terry-based

analysis of Gonzalez, which we have now overruled, to determine that

“the traffic stop was justified at its inception,” and that the officer’s
 

4The appellate court, on remand, found “no basis for changing our

original decision in this case.” Harris II, No. 3–00–0190 (unpublished order

under Supreme Court Rule 23).

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request that the defendant/passenger identify himself was “facially

innocuous.” Harris I, 207 Ill. 2d at 525, citing Gonzalez, 204 Ill. 2d

at 236. The majority reasoned that:

“Such a request gave the officer the opportunity to identify a

potential witness to the traffic violation and to the officer’s

actions during the course of the stop, providing a certain level

of protection to both the officer and the driver of the vehicle.

Moreover, the request for identification, in and of itself, did

not change the fundamental nature of the stop by converting

it into a general inquisition about past, present and future

wrongdoing.” Harris I, 207 Ill. 2d at 525.

The dissenting justices agreed that the officer’s request for

identification was lawful. Harris I, 207 Ill. 2d at 537 (Fitzgerald, J.,

dissenting, joined by Thomas and Garman, JJ.).

We note that the State has failed to present an argument on this

issue, except to say that this court’s conclusion in Harris I was

unanimous and correct. The State fails to appreciate that when we

agreed with its assertion that Gonzalez has been overruled by the

Supreme Court, it became necessary to analyze this issue under some

framework other than the abandoned Gonzalez approach.

Defendant acknowledges that he was lawfully detained for the

duration of the traffic stop, which was not unreasonably prolonged.

See Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at

837 (a seizure can become unlawful “if it is prolonged beyond the time

reasonably required” to complete the traffic stop). He does not

suggest that the stop was not “otherwise executed in a reasonable

manner.” Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct.

at 837. He argues, instead, that when the officer asked him for

identification, he was not free to leave and he reasonably believed that

compliance with the officer’s request was required. His argument is,

in effect, that the appellate court’s original analysis of the request-foridentification issue under the principles enunciated by the United

States Supreme Court in Bostick was and continues to be correct.4
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The Supreme Court cited Bostick in Muehler, but because Mena

did not argue that her response to the INS officer’s questions was

involuntary, the Court did not conduct a Bostick analysis. Defendant

argues that the officer’s request for identification violated his fourth

amendment rights because his compliance was not voluntary, we must

therefore address that question.

The general principles of Bostick can be summarized as follows:

For purposes of the fourth amendment, an individual is “seized” when

an officer “ ‘by means of physical force or show of authority, has in

some way restrained the liberty of a citizen.’ ” Bostick, 501 U.S. at

434, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386 (1991), quoting Terry,

392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16.

“So long as a reasonable person would feel free ‘to disregard the

police and go about his business,’ [citation], the encounter is

consensual and no reasonable suspicion is required.” Bostick, 501

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

California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698,

111 S. Ct. 1547, 1552 (1991). If, however, when “ ‘all the

circumstances surrounding the incident’ ” (Immigration &

Naturalization Service v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d

247, 255, 104 S. Ct. 1758, 1762 (1984), quoting United States v.

Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct.

1870, 1877 (1980)) are taken into account, the conduct of the police

would lead a reasonable innocent person under identical circumstances

to believe that he or she was not “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), that person is seized.

Accordingly, the analysis hinges on an objective evaluation of the

police conduct and not upon the subjective perception of the

individual approached. Hodari D., 499 U.S. at 628, 113 L. Ed. 2d at

698, 111 S. Ct. at 1551.

The appellate court noted the “flashing emergency lights” of the

squad car, the impending arrest of the driver, and the fact that the

officer did not explain to defendant why he was asking to see his

identification. The totality of these circumstances, the appellate court

concluded, rendered defendant’s compliance involuntary. Harris I,

325 Ill. App. 3d at 266.
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In People v. Luedemann, 222 Ill. 2d 530, 555 (2006), this court

observed that the question is not whether the individual “practically

and realistically” felt free to decline the officer’s request. Rather, the

court must conduct an objective assessment of police conduct to

determine if the defendant’s compliance was obtained through

physical force or show of authority. This test “presupposes a

reasonable innocent person.” (Emphasis in original.) Luedemann, 222

Ill. 2d at 551. “The analysis requires an objective evaluation of the

police conduct in question and does not hinge upon the subjective

perception of the person involved.” Luedemann, 222 Ill. 2d at 551.

The fact that defendant was seized at the time the officer

requested his identification is certainly relevant to this inquiry. When

the individual approached and questioned by a police officer is a

passenger who has already been seized incidental to a traffic stop

(Brendlin, 551 U.S. at ___, 168 L. Ed. 2d at 138-39, 127 S. Ct. at

2406), or a person who is detained while a search is conducted

pursuant to a warrant (Summers, 452 U.S. at 705, 69 L. Ed. 2d at

351, 101 S. Ct. at 2595), the individual is not free to terminate the

encounter. The proper inquiry under Bostick, therefore, is whether the

individual was free to decline the officer’s request. The specific

question in the present case is whether an innocent person in

defendant’s circumstances would have felt free to decline to produce

his identification for the officer.

We conclude that defendant was free to decline the officer’s

request for identification notwithstanding the fact that he was not free

to terminate the encounter. A reasonable innocent passenger in

defendant’s situation, even upon realizing that the driver of the car in

which he has been riding is about to be arrested, would feel free to

decline to provide his driver’s license or other identification. Being

involved in a traffic stop is not quite as stressful or upsetting for the

passenger as it is for the driver. As this court has noted, in a portion

of Gonzalez that does not conflict with the Supreme Court’s decision

in Muehler, a request for identification is facially innocuous: “It does

not suggest official interrogation and is not the type of question or

request that would increase the confrontational nature of the

encounter.” Gonzalez, 204 Ill. 2d at 236. An innocent passenger has

nothing to fear and no reason to feel intimidated or threatened. He

might even ask why the police officer needs the information. If the
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officer explains that he may let the passenger drive the vehicle, he may

choose that option or decline. If he declines, the officer may not insist

that he comply. See, e.g., Bautista v. State of Florida, 902 So. 2d

312, 313 (Fla. App. 2005) (after arrest of driver during lawful traffic

stop, passenger responded to officer’s request for identification by

saying that he did not have any identification with him; in the absence

of reasonable suspicion, the officer’s subsequent demand that

passenger remove his wallet from his pocket was improper).

We conclude that the request for defendant’s identification was

permissible under Muehler and that his compliance was voluntary

under Bostick, and, thus, did not violate defendant’s fourth

amendment rights.

CONCLUSION

The trial court properly denied defendant’s motion to suppress.

Neither the officer’s request that defendant provide identification nor

the subsequent warrant check using the information obtained from the

defendant violated his rights under the fourth amendment. Therefore,

we reverse the appellate court’s judgment and affirm the judgment of

the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.