## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Lopez , 2013 IL App (1st) 111819

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff- A ppellant, v. J AMES L OPEZ , Def

endant- Appellee

.

District & N o. First District, F ifth Division
Docke t No. 1-11-1819

Filed September 13, 2013

Held ( Note : Th i s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er o

f D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n a prosec ution for ag g rava ted driving under the influence of alcohol, the
g rant of defe ndant’s motion to quash his arr est and suppress evidenc e was

reve rsed and the cause was rema nded for further proce eding s, since no seizure occur

red for purposes of the fourth amendment when two office rs approa ched on foot while defe ndant was sit t i n g in a vehicle in a public alley
, one office r went to the passeng er side, the other to the driver’ s side, defe ndant was asked for his driver’ s license, no g uns wer e draw n, no commanding tone of voice was used, and defe ndant was not blocked from exit ing the scene

.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 1 0 -C R

- 19165; the Hon. J oseph M. Claps, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Anita M. Alvare z, S t at e ’s Attorney
, of Chicag o (Alan J

. Spellberg
, Kathlee n Warnick, Amy M. Watroba
, an d Yvette L oizon, Assistant State’s Attorney s, of counse l), for the People.

Abishi C. Cunningha m, J r., Public Def ender
, of Chicag o (L indsay Hug é, Assistant Publ ic Def

ender , of counse l), for a

ppellee.

Panel J USTI CE GORDON de livered the judgme nt of the court, with opinion.
J ustice Rey es conc urre d in the judgme nt and opinion.
J ustice Ha ll dissented, with opinion.

OP INION

¶ 1 Def

endant J ames L opez was arr ested on October 13, 2010, and char g ed with ag g rava ted driving under the influence of alcohol. He then filed a pretria l m o t i o n t o quash arr est and
suppress evidenc e, which was g rante d by the trial court. T h e S t at e f iled a motion to

rec onsider, which the trial cour t al s o d en ied. The State then fil ed thi s interlocutory appea l in order to a

ppeal that r

uling. ¶ 2 The issue befor e us is whether a person is seized for purposes of the fourth amendment (1) when the person is sitti ng in a station ar y v eh i cl e o n a public street or alley
, and two office rs approa ch the vehicle on foot, with one office r walking toward the driver’ s side and

one toward the passeng er’ s side, and ask to view the person’ s driver’ s license and (2) when there was no e vidence that the offic ers dr ew their g uns, used a commanding tone of voice
, or used their

vehicle or

bodies to block the vehic le from e x iting. ¶ 3 I n People v. Cosby
, 231 I ll. 2d 262, 278 (2008), our supreme court held that the fac t that
two “off icer s approa ched the defe ndant’s car , on e o n ea ch side,” did not transfor m an encounte r into a seizure, wher e there was no indication that “either of the off icer s touched [defendant’ s] person, that they display ed their g

uns, or that [the office rs] used l ang uag e or

a tone of voice indicating to [defendant] that he had no choice ” but to comply

. Our opinion is one of the f

ew a ppellate c ourt ca ses to interpre t and apply this holdi ng in Cosby

. ¶ 4 For the following rea sons, we reve rse and rema nd for further proce eding s consistent with this opini on.

¶ 5 BA CKGROUND ¶ 6 I n his motion to quash arr est and suppress evidenc e, defe ndant arg ued that his arr est was made without an arr est war rant or probable cause , and he asked the trial court to suppress the evidenc e and sta tements obtained a s a re sult of the arr est.

-2-¶ 7 At the suppression hear ing, Chicag o police offic er Da v i d S al gad o t es tified that on October 13, 2 0 1 0
, he was working with his partne r, Offic er Esmere lda Perez. They wer e dresse d in civilian clothes and wea ring bulletproof vests and duty bel t s , a nd driving an unmarke d vehicle with “M” license plates. At 1:30 a.m., t hey responde d to an anony mous

ca l l co n ce rn i n g a suspicious g ree n pickup truck with two occupa nts parke d for “quite a wh i l e” in the alley at approximately 4225 West 24th Place in Chicag o. The alley is a “throug h” alle y r ather than a dead end. When the office rs arr ived at that location, they observe d one person in a g ree n pickup truck parke d behind a g ara g e. Half of the vehicle was

on the apron of the g ara g e, and the other half was in the alley
, there by obstructing the public
way

. 1 At that time, no one wa s attempting to lea ve the g ara g e, and O ffice r Salg ado did not know if the g ara g e belong ed to defe ndant or if he had permission from the homeowner to be there

. The vehicle was not moving, and there wa s no traff ic in the alley

. Offic er Salga do testified that it is il leg al to park in an alley
, but that it is not illega l to sit in y our vehicle in the alley

. Howeve r, he also testified that it is illega l to block the alley
, as defe ndant’s vehicle was doing

. ¶ 8 The office rs approa ched th e v eh i cl e o n foot from opposite sides and, as they did so, Offic er Salga do noti ce d t h at t h e truck was running and that defe ndant, who was in the driver’ s seat, turned the eng ine off. Offic er Salga do asked defe ndant for his driver’ s license and asked defe ndant “wha t he was doing there

. ” 2 Of fi cer Salga do did not testify that the office rs’ g uns wer e draw n or that he used a commanding tone of voice. Def endant was unable to produce his driver’ s license, but provided a state identification car d. Offic er Salga do testified that it is illega l to be in phy sical control of a vehicle without a valid driver’ s license. Def

endant also volunteere d t h at h e h ad been drinking

. The office r then order ed defe ndant out of t he truck, but, as he exited, he beg an to fall, so the officer had him return inside. ¶ 9 Once Offic er Salga do lear ned that defe ndant did not reside at this location, he g ave him

a citation for blocking the alley

. Offic er Salga do testified that he issued a total of three tickets: two moving violations, a s well as a parking ticket for blocking the alley

. Howeve r, he did not specify the nature of the two moving violations. Offic er Salga do testified that

1 T he dis sen t st at es tha t the vehicl e was par ked hal fwa y “i n” a garage and hal fwa y in the al le y. Inf ra ¶¶ 37, 43. T hat st at ement is fa ct ual ly inc orr ect

. T he off ic er te st if ie d tha t the vehicl e was “be hin d” the garage not “i n” it

. Spec if ic al ly, the off

ic er te st if ie d tha t the vehicl e obs tr uct ed the al le y wher e “ha lf the car was par ked on the apr on of the garage and hal f was in the al le y.” On re dir ect , when the off

ic er was a s ke d i f t h e vehicl e was “be hin d” the garage, he re pli ed “[ t] hat is cor re ct .” T hus , th e vehi cl e was not in si de t he gar age but beh ind it , wit h ha lf th e vehi cl e on th e a pro n of th e garage an d ha lf

in th e a ll ey.

2 T he dis sen t st at es tha t, af te r re que st ing def

end ant ’s dri ver’s li cen se, the off ic er “qu est ion ed him abo ut wh a t h e w a s d o i n g the re at tha t ti m e of the m orn ing.” Inf ra ¶ 37. T hat st at ement is fa ct ual ly inc orr ect

. T he off ic er te st if ie d tha t, af

te r re que st ing def

end ant ’s dri ver’s li cen se, he asked onl y one que st ion and it was si m ply “wha t was he doi ng the re .” T her e wer e no fur the r que st ion s and
no q ues ti ons abo ut the ti m e of day.

-3-Offic er Ba lcar conducte d field sobriety tests of defe ndant and that defe ndant underw ent a

Br eatha ly zer test at the police station. Def endant was then char g ed with ag g rava ted driving under the influence

. ¶ 10 The trial court g rante d defe ndant’s motion to quash his arr est and suppress evidenc e. I n doing so, the t rial court noted t he officer ’s t estimony that it was not illega l to sit in a truck in an alley and that the anony mous call did not indicate the nature of the suspicious activity

. The trial court conclude d that the police could have ticketed the vehicle, but that “to reque st identification base d on that information *** violated the f ourth amendme nt.” ¶ 11 The State as k ed t he trial court to rec onsider its ruling

. I n its written motion, the State
arg u ed : (1 ) that the police had probable cause to arr est since they had observe d defe ndant commi t t i n g a violation, namely
, blocking the alley ; (2) that the police had a rea sonable suspicion to conduct a Terry stop pursuant to Terry v. Ohio
, 392 U.S. 1 (1968); and (3) that “the police may approa ch a person seate d in a parke d vehicle and ask questions without that
encounte r bec oming a

seizure.” ¶ 12 The trial c ourt denied the State’s motion to reconsider , stating:

“The re is nothing that I hear d in the testimony t h at would rea sonably come to the conclusion that he was illega lly parke d in that alley

. He wasn’t parke d, he was in the car

. The car is running

. I f the y t houg ht there was an issue [t hey ] could simply have him moved. I hear d nothing that sa id he was bloc king.
So there is a finding of fac t. I find that the observa tions of the police office r testified
to did not violate the ordinanc e which they indicated was a rea son to stop the defe ndant. There is no question in my mind that this was a

n afte rthoug ht. The motion is denied.” ¶ 13 The State filed a timely n o t i ce o f ap p ea l from the trial court’s denial of its motion to

rec onsider and this appea l follows, pursuant to I llinois Supreme Court Rules 604(a) (1) (ef f. J uly 1, 2006) and 606 ( eff

. Mar. 20, 2009)

.

¶ 14 ANAL YSI S ¶ 15 On t h i s appea l, the State maintains that the trial court err ed in g ranting defe n d an t ’ s motion to quash arr est and suppress evidenc e. The State arg ues t h at t h ere was no fourth amendment violation beca use there was no seizure but, rathe r, a consensua l encounte r when the police asked defe ndant for his driver’ s license. Def endant responds that he was seized for
purposes of the fourth amendment when the police approa ched him on both sides of his truck and re quested his driver ’s license

.

¶ 16 I . Standard of Re view ¶ 17 On re view of a trial court’ s ruling on a motion to suppress, g rea t defe renc e is ac corde d
to the trial court’s fac tual finding s, and the revie wing court will reve rse those finding s only if they are ag ainst the manifest weig ht of the evidenc e. People v. Sorenson
, 196 I ll. 2d 425, 431 (2001). “ ‘A judgme nt is ag ainst the manifest weig ht of the eviden ce o n l y when an opposite conclusion is appar ent or when finding s appea r to be unrea sonable, arbitra ry , or not based on evidenc e.’ ” People v. Lomax
, 2012 I L App (1st) 103 0 1 6
, ¶ 1 9 (quoting Bazydlo

-4-v. Volant
, 164 I ll. 2d 207, 215 (1995))

. “The revie wing court is fr e e to make its own

assessment of the fac ts when draw ing leg al conclusions on the issues prese nted. [C itation.] There fore
, this court revie ws de novo the ultimate question of whether or not the motions to quash arr est and suppress evidenc e should have been g ran t ed

. ” P eo p le v. Lomax
, 2012 I L App (1st) 103016, ¶ 19 (ci t i n g People v. Jones
, 215 I ll. 2d 261, 268 (2005))

. De novo consideration means we perf orm the s ame analy sis that a trial judge would perf orm. Khan v. BDO Seidman, LLP , 408 I ll. App. 3d 564, 578 (2011).

¶ 18 I I . Seizure Under the Four th Amendment ¶ 19 The issue befor e us is whether a person is seized for purposes of the fourth amendment: (1) when the person is s i t t i n g i n a s t ationary vehicle on a public street or alley
, and two office rs approa ch the vehicle on foot, with one office r walking toward the driver’ s side and

one toward the passeng er’ s side, and ask to view the person’ s driver’ s license and (2) when there was no evidenc e that the office rs had their g uns draw n, used a c ommanding tone of voice or used their ve hicle or bodie s to block the vehicle from exiting. ¶ 20 The State maintains that the office rs eng ag ed in a consensua l encounte r with defe ndant in asking him fo r i d en t i fica tion and asking what he was doing in the alley
, throug h which they obtained informa tion giving them probable cause to seize defenda nt. ¶ 21 Def

endant conce des in his brief to this court tha t , b y t h e t i m e t h e o ff i ce rs order ed defe ndant out of t he vehicle, t hey had probable cause to arr est him based on the facts then known to them, namely
, “that defe ndant was illega lly parke d in the alley
, did not live at that addre ss, was opera ting a m o tor vehicle without a valid driver’ s license, and had been drinking .” Howeve r, defe ndant arg ues that the trial court corr ectly quashed his arr est beca use he was seized prior to tha t point, namely
, when the office rs approa ched his ve hicle on foot from e ither side and asked for his driver’ s license. Be cause defe ndant conce des on appea l that probable cause exis ted at the time he wa s order ed out of the truc k, the question fac ing this court is w hether the initial enc ounter betwee n the office rs and defe ndant was a seizure under the fourth ame ndment. ¶ 22 The four

th amendment of the United States Constit ution protects ag ainst unrea sonable

sear ches and seizures. U.S. Const., amend. I V. Under the fourth amendment, an individual is “seized” when an “ ‘off icer
, by means of phy sical forc e or show of authority
, has in some way restra ined the liberty of a citizen.’ ” Florida v. Bostick
, 501 U.S. 429, 434 (1991) (quoting Terry
, 392 U.S. at 19 n.16). “I t is well settled that not ever y encounte r betwee n the police and a private citizen results in a seizure.” People v. Luedemann
, 222 I ll. 2d 530, 544 (2006) (citing Immigration & Naturali zation Servic e v. Delgado
, 466 U.S. 210, 215 (1984))

. The I llinois Supreme Court set forth the three tiers of police-c itiz e n en co u n t ers in Luedemann : “(1) arr ests, which must be supported by probable cause ; (2) brief investiga tive detentions, or ‘ Terry stops,’ which must be supported by a rea sonable, articula ble suspicion of criminal activity ; and (3) encounte rs that involve no coer cion or detention and thus do not implicate fourth amendment interests.” Luedemann
, 222 I ll. 2d at 544 (citing United States v. Black , 675 F.2d 129, 133 ( 7th Cir. 1982), and United States v. Berry
, 670 F.2d 583, 591 (5th Cir. 1982)). “The third-tier encounte rs are also known as ‘conse nsual e n co u n t e rs.’ ”

-5-L u ed em ann , 222 I ll. 2d at 544. “[T] he law clea rly provides that a police office r d o es n o t violate the four

th amendment mer ely by approa ching a person in public to ask questions if the person is willing to listen.” Luedemann
, 222 I ll. 2d at 549 (citin g Un i t ed S t a t es v. Drayton , 536 U.S. 194, 200 (2002)). ¶ 23 I n United States v. Mend en h a l l
, 446 U.S. 544, 554 (1980), the United States Supreme Court held that a perso n is seized within the meaning of the fourth amendment when a

rea s onable person would not fee l fre e to leave under the circ umstances surrounding the incident. Howeve r, in case s wher e the person’ s fre edom of movement is restra ined by some fac tor other than police conduct, such as when the person is in a p ar k ed v eh i cl e, “the
appropr iate test is whether a rea sonable person in defe ndant’s position would have believed he was fre e to decline [t he office r’s] reque s t s o r otherwise terminate the encounte r.” Luedemann
, 222 I ll. 2d at 550-51 (citing Bostick
, 501 U.S. at 436, and People v. Gherna
, 203 I ll. 2d 165, 178 (2003))

. “More over, the test presuppose s a rea sonable innocent person,” and “re quires an objective evalua tion of police conduct.” (Emphasis omitted.) Luedemann
, 222 I ll. 2d at 551 (citing Bostick , 501 U.S. at 438). ¶ 24 The Mende nhall Court stated: “Examples of circ umstances that might indicate a seizure,

even w here the per son did not attempt to leave
, would be [ (1)] the threa tening prese nce of

sever al office rs, [(2)] the display of a wea pon by an office r, [(3)] some phy sical touching of the person of the citizen, or [(4)] the use of lang uag e or tone of vo i ce i n d i c ating that compliance with the office r’s reque st might be compelle d

. ” Mende nhall
, 446 U.S. at 554. These fac tors are commonly ref err ed to as the Mende nhall fac tors. “I n the absenc e of some such evidenc e, otherwise inoffensive contac t betwee n a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” Mende nhall
, 446 U.S. at 555. I n the case at bar, the appellate rec ord shows no evidenc e that any of the Mende nhall fac tors

wer e prese nt. Def

endant claims in his brief to this court that one Mende n h all fac tor was prese nt, namely
, the “appr oach of more than one office r.” Howeve r, the Mende nhall Court ref err ed to “the threa

tening prese nce of sever al office rs” ( Mende nhall
, 446 U.S. at 554), and

our supreme court has held that “the prese nce of only two o ff i ce rs , without more, is not a fac tor that would indicate a seizure occur red” ( Cosby
, 231 I ll. 2d at 278). Thus, the fac t that there wer e two office rs, by itself, would not transfor m an otherwise consensua l en c ounter into a seizure. ¶ 25 The fac ts of the case at bar are simil ar to those in Luedemann

. I n Luedemann
, the initial
encounte r was found to be consensua l based on the fac ts that the office r drove past the defe ndant’s vehic le so as not to block him, did not use coe rcive lang uag e or tone of voice
, did not touch the defe ndant, did not display his wea pon, used his flashlig ht as he approa ched the def endant only

beca use it was night

time, and simply

asked the defe ndant what he was doing there and for his identification. Luedemann
, 222 I ll. 2d at 534, 565. Our supreme court found that no seizure occur red at that time, and t h at it was only afte r the office r observe d signs of intox ication which included slurred speec h, the smell of alcohol, and an open bottle in the vehicle, th at a re asonable
, articula ble suspicion was provided for the subsequent seizure. Luedemann , 222 I ll. 2d at 565-66. ¶ 26 Simi larly
, in the case at bar, Offic er Salga do testified that he responde d to an anony mous

c al l reg arding a suspicious vehicle and observe d defe ndant sitti ng in a pickup truck in the

-6-alley behind 4225 West 24th Place. He and his partne r then approa ched and asked defe ndant

for his driver’ s license and asked what he was doing there

. As in Luedemann
, this consensua l
encounte r led to a rea sonable, articula ble suspicion that defe ndant was intox icated while in control of a

motor vehicle, w here he admitted that he ha d been dr inking and was unable to exit the vehicle without falling. Luedemann , 222 I ll. 2d at 566. ¶ 27 T h e simple fac t that the office rs approa ched on differ ent sides of the vehicle d i d n o t transfor m this consensua l encounte r into a seizure. Our supreme court expli citly reje cted that
arg umen t i n C o s b

y

. I n Cosby
, our supreme court held that the fac t that two “off icer s approa ched defe ndant’s car, one on eac h side,” did not transfor m an otherwise consensual
encounte r into a seizure, whe re the re was no indication that “either of the offic ers touche d [defendant’ s] person, that they display ed their g uns, or that [t he off

icer s] us ed lang uag e or a tone of voice indicating to [defendant] that he had no c hoice” but to comply

. Cosby , 231 I ll. 2d at 278. ¶ 28 The Cosby court distinguished Gherna
, in which our supreme c ourt had found tha t the defe ndant was seized when two office rs positioned the mselves and their bicy cles in suc h a way as to preve nt the defe ndant from either exit ing her vehicle or d ri v ing awa y and then questioned the defe ndant about her identity and asked her to exit her vehicle. Cosby
, 231 I ll. 2 d at 279; Gherna
, 203 I ll. 2d at 168-71. The Cosby court distinguished Ghern a o n t h e g round that, in Cosby
, there was no evidenc e that the office rs wer e try ing t o “b o x ” i n t he defe ndant’s vehicle. Cosby
, 231 I ll. 2d at 280. Thus, the fac t that two office rs approa ched a vehicle on foot from opposite sides, as h ap p en ed in the case at bar, does not transfor m an encounte r into a seizure, with o ut further evidenc e that the office rs wer e box ing in the vehicle. Cosby , 231 I ll. 2d at 280. ¶ 29 I n the case at bar, the rec ord shows no indication that Offic er Salga do and Offic er Perez

wer e try ing to box in

defe ndant’s vehic le. Our c ase is fur ther distinguisha

ble from Gherna beca use, in the case at bar, defe ndant conce des that, by the time the office rs asked him to exit his vehicle, they had probable cause

. By contra st, in Gherna
, the fa ct t h at the office rs direc ted the defe ndant to exit her vehicle was one of the circ umstances that led our supreme court to conc lude a se izure had occ urre d. Gherna , 203 I ll. 2d at 183. ¶ 30 I n light of our supreme court’s holding in Cosby
, we find that the initial contac t betwee n defe ndant and the police office rs was inoffensive and did not, as a matter of law, amount to

a seizure. Cosby
, 231 I ll. 2d at 281-82; Luedemann
, 222 I ll. 2d at 5 5 3 (citing People v. Murray
, 1 3 7 I l l

. 2 d 382, 390-91 (1990) (noting that “[i] n the absenc e of [t he Mende nhall fac tors or] some such evidenc e, otherwise inoffensive con t ac t b et we en a member of the public and the police cannot, as a matter of law, amount to a seizure of that person” (interna l quotation marks omitted))). ¶ 31 Def

en d an t cites People v. Cash for the proposition that “a seizure occur s either wher e phy sical forc e is use d on the suspect or, absent the use of phy sical forc e, wher e the suspect submits to the asser

tion of authori t y .” People v. Cash
, 396 I ll. App. 3d 931, 943 (2009) (citing Village of Mundele in v. Thompson
, 341 I ll. App. 3d 842, 848 (2003))

. Howeve r, we note that Cash is fac tually distinguishable from the case at bar. I n Cash
, police office rs wer e surveilling the home of a man and waiting to execute a sear ch war rant for the house. Cash
,

-7-396 I ll. App. 3d at 933. The police had not y et executed the sear ch war rant due to a conce rn about firea

rms in the house. Cash
, 396 I ll. App. 3d at 933-34. When the man left his home, the police followed him in three unmarke d police vehicles without an arr est war rant for him

or a sear ch war

rant for his vehicle. Cash
, 396 I ll. App. 3d at 934. The man then parke d and the def endant joined him in his ve hicle. Cash
, 396 I ll. App. 3d at 934. Althoug h the police observe d no traff

ic, parking or other violations committed by the man or the defe ndant, the office rs pulled in behind the vehicle and activate d a siren. Cash
, 396 I ll. App. 3d at 934, 941. The revie wing court held that an improper seizure occur red when the defe ndant and the other

man submitt ed to this asser tion of authority by the pol ice. The court found that t here wer e

no g rounds to support the seizure and there for e gra n t ed the motion to suppress evidenc e discovere d afte r the seizure. Cash
, 396 I ll. App. 3d at 946. Howeve r, in the case at bar, the office rs never activate d a siren and asked defe ndant only for identification and what he was doing in the alley

. 3 This is in st ar k co n t ra st to Cash
, wher e the police not only activate d a siren, but also asked defe ndant and the other man to exit the vehicle. Cash
, 396 I ll. App. 3d
at 941. Since the fac ts of Cash and our ca s e ar e s o differ ent, we do not find defe ndant’s citation to Cash persua sive. ¶ 32 I n sum, the case at bar is simil ar to Luedemann in that none of the Mend en h a l l fac tors

wer e prese nt. Luedemann
, 222 I ll. 2d at 553. I n addition, our supreme court has alre ady held that the fac t that two office rs approa ched defe ndant from opposite sides of the vehicle, absent other evidenc e, does not transfor m a consensua l encounte r into a seizure. Cosby
, 231 I ll. 2d
at 278. There fore
, the trial court err ed in g ranting defe ndant’s m o t ion to quash arr est and suppress evide nce.

¶ 33 CONCL USI ON ¶ 34 For the fore g oing rea sons, we reve rse the trial court’s order g ranting defe ndant’s motion
to quash arr est and suppress evidenc e and rema nd this case for further proce eding s consistent with this opi nion.

¶ 35 Reverse d and re manded.

¶ 36 J USTI CE HAL L , dissenting. ¶ 37 I respe ctfully dissent for two rea sons. First, contra ry to the majority
, I believe defe ndant

was “seized” within the meaning of the fourth amendment when police office r Salga do and his p ar t n er approa ched defe ndant’s parke d pickup truck and beg an questioning him. The

3 T he Sta te ar gues tha t the pol ic e had pro bab le cau se to bel ie ve tha t def end ant had viola te d

a m uni ci pal par king ord ina nce by par king his tr uck in a m ann er tha t blo cked the al le y. However, the
tr ia l cou rt m ade a “f

ind ing of fa ct ” tha t the Sta te pre sen te d no eviden ce tha t def end ant was il le gally
par ked in the al le y. T he tr ia l cou rt m ade thi s fi ndi ng des pit e Off i c e r S a l ga d o’s unc ont ra dic te d
te st imony tha t def

end ant ’s vehicl e “was ob s t r u c t ing the al le y.” However, si nce we fi nd tha t the re

was no sei zure, we do not re ach the is sue of whet her the tr ia l cou rt ’s fa ct ual fi ndi ng was agains t the

m ani fe st wei ght of

th e e videnc e. Lued emann , 222 I ll . 2d at 542

.

-8-pickup truck was parke d half w ay in a g ara g e and halfwa y in the alley

. When the office rs exit ed their unmarke d squad car and approa ched defe ndant’s vehicle from both sides, he turned off t h e engine

. The officer s asked defenda nt for his driver’ s license and questioned him about what he wa s doing the re a t that time of the morning

. ¶ 38 A p er s o n i s s e ized when, considering all the fac ts and circ umstances surrounding the incident, a rea sonable p e rson would not fee l fre e to leave

. People v. Brownlee
, 186 I ll. 2d 501, 517 (1999). Ba sed on the totality of the circ umstances in this case , a rea sonable person in defe ndant’ s p o s i t i on would not have felt fre e to leave and discontinue contac t with the police. Def

endant’ s encounte r with the police was akin to a traff ic stop, which constitutes a seizure for f

ourth amendme nt purposes. People v . Bunch , 207 I ll. 2d 7, 13-14 (2003). ¶ 39 Second, I believe defe ndant’s encounte r with the police was unjustified at its inception. “As a g ener al rule, all seizures mu s t be rea sonable, and the rea sonablene ss of a seizure depends on a b al an ce b e tween the public interest and the individual’s rig ht to persona l

secur ity fre e fr om arbitrar

y interfe renc e fr om law enf orce ment ***.” Brownlee , 186 I ll. 2d
at 517-18 (citing United States v. Brignoni-Ponce
, 422 U.S. 873, 878 (1975))

. I n deter mining whether a particula

r sear ch and seizure was rea sonable, a court must first inquire whether the office r’s action wa s j u s t i fied at its inception. People v. Hunt
, 188 I ll. App. 3d 359, 361 (1989). ¶ 40 I n order for a sear ch to be justified at its inception, an off icer must have an obje ctively

rea sonable, articula

ble suspicion that the detainee committed or is about to commit a crime. See People v . Harper , 237 I ll. App. 3d 202, 205 (1992); People v . Haywood , 407 I ll. App. 3d 540, 543 (2011). A rea sonable, articula ble suspicion is “ ‘a particula rized and objective basis’ for suspecting the person stopped of criminal activity .” Ornelas v. United States
, 517 U.S. 690, 696 (1996) (quoting United States v. Cortez
, 449 U.S. 411, 417 (1981))

. A police office r’s level of suspicion ne ed not r ise to the level of probable cause , but it must be more than a hunc h. People v . Close , 238 I ll. 2d 497, 505 (2010). ¶ 41 “A tip from an anony mous person may

supply the re quisite quantum of sus picion ***, provided the i nformation bears som e indi cia of reliability .” People v. He n der son , 2013 I L 114040, ¶ 26. “The reliability of any g ive n i n fo rm an t ’s tip as it rela tes to a rea sonablesuspicion analy sis must be deter mined in a case -by -ca se basis.” People v. Sanders
, 2013 I L App (1st) 102696, ¶ 20. ¶ 42 I n this case , the anony mous t el ep h o n e t i p d i d n ot provide police with a rea sonable, articula ble suspicion of criminal activity nece ssary to ju s tify confr onting defe ndant and questioning him in the manner they did. At the time office rs seized defe ndant, they had only been told by dispatch that t h er e wa s a suspicious g ree n pickup truck, with two occupa nts, parke d in the alley at 4225 West 24th Place. When the of fi ce r s arr ived at the scene , they observe d the pickup truck, with one occupa nt, parke d halfwa

y in a g ara g e and halfwa

y in the alley

. ¶ 43 The problem for the State is that the office rs did not observe any illega l activity and the
anony mous telephone tip asser

ted no illega l activity

. Reasonable suspicion “ require s that a tip be reliable in its assertion of illeg ality
, not just in its tendenc y to identify a determinate person.” Florida v. J.L. , 529 U.S. 266, 272 (2000).

-9-¶ 44 I n sum, I believe d ef en dant was seized within the m eaning of t he fourth amendment. I further believe the seizure was unjustified at its inception beca use the fac ts failed to support

a rea sonable, articula

ble suspicion that defe ndant was eng ag ed or abou t t o be eng ag ed in

c r im in a l c o n d

u c t. A c cording ly
, I would aff irm the trial court’s judgme nt g ranting defe nd a n t’ s motion to quash arre st and suppress e vidence

.

-10-