The opinion
PRESIDING JUSTICE O’MALLEY, dissenting:
I agree with the majority’s analysis of whether and when a seizure may be justified as an exercise of the community caretaking function of police.
I dissent, however, from the majority’s conclusion that defendant was seized as Officer Pate approached defendant’s vehicle on foot, that is, before Officer Pate saw the brown bottle on the floor of defendant’s car, and, of course, before Officer Pate spoke with defendant and noticed signs of intoxication. The timing of the seizure is crucial, for if, as I believe, the seizure occurred after Officer Pate made these observations, then he would have had more than sufficient warrant for his action (a point that the majority does not and could not dispute).
I must dissent because the majority’s conclusion that defendant was seized as Officer Pate approached the car on foot is flatly at odds with clearly controlling precedent from both the United States and Illinois Supreme Courts, and because the majority’s analysis, viz. whether the officer’s actions were of the kind that an ordinary citizen would take, is both odd and unprecedented in our storied fourth amendment jurisprudence. Consequently, this decision and the way in which it was arrived at constitute a major upheaval of established search and seizure law. I do not use the word “upheaval” lightly. If the question of whether a seizure has occurred turns on whether the police officer’s actions were of a kind that an ordinary citizen would take, then the consequences are enormous. Ordinary citizens routinely request the police to check something or someone out precisely because the citizen is scared to do it, i.e., he thinks it’s the kind of action that police, not ordinary citizens, should take. Frequently, these requests do not contain information sufficient to form a reasonable and articulable suspicion of criminal activity. In the wake of today’s decision, police can respond to these citizen requests with the suggestion that the citizen himself check out the situation. When the citizen responds that he thinks it’s the kind of situation that police, not ordinary citizens, should check out, is the officer to respond that that is precisely why he is not going to take any action?
A seizure occurs “ ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” People v. Murray, 137 Ill. 2d 382, 387-88 (1990), 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). The majority scrutinizes Officer Pate’s actions to determine whether they were of the kind that ordinary citizens, not police officers, would take. See 357 Ill. App. 3d at 421. Finding that ordinary citizens neither park in the middle of the street nor shine flashlights into or around people’s cars nor approach those cars on foot from the rear, the majority concludes that these actions were a show of authority that restrained defendant’s liberty. I must credit the majority with a hearty, creative spirit. I have not seen the like of this approach in any case interpreting the fourth amendment. I take it that the lack of authority cited in support of the majority’s perspective is a silent admission of novelty. Even in its response to my points, the majority still does not cite any authority for, and in fact ignores my criticism of, its notion that a seizure is determined by looking at whether the officer is acting as an officer as opposed to a private citizen. Indeed, the majority appears to have a distinctly cavalier view of precedent, writing that every case is sui generis, that precedent provides only “some insight” into current issues, and that a “practical, realistic inquiry” is superior to “reliance on rigid, technical, black-letter rules.” 357 Ill. App. 3d at 421. I admit that any particular set of facts seldom survives wholesale into the next case, a reality that permits courts to justify different results in cases that at first blush appear to be factually similar. However, our body of case law keeps its coherence in the flux of facts only by adhering to principles. Today the majority reaches its result by substituting principles of its own devising for those that the law has recognized. Lacking a grounding in the law — a principled backdrop — the majority’s analysis quickly loses its way and takes on the appearance of an ad hoc enterprise.
First, for all the majority’s avowed distaste for black-letter rules, any reader will find it difficult not to draw such a rule from the majority’s analysis, for it is continually suggested throughout the analysis that police must act as little like police as possible, lest a seizure occur. However, under established search and seizure law, the touchstone is not whether the police officer is acting peculiarly as a police officer in initiating an encounter. Terry recognized that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Terry, 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16. Elaborating further on the variety of police-citizen encounters, Terry said:
“Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation.” Terry, 392 U.S. at 13 , 20 L. Ed. 2d at 901 , 88 S. Ct. at 1875-76 .
Terry did not then go on to hold that any instance of police-citizen interaction must be indistinguishable from citizen-citizen interaction in order to fall short of a seizure. Encompassed within the breadth of the nonseizure encounters generally described by Terry and its countless progeny is a wide gamut of activity unique to police, far unlike citizen-citizen encounters. Ordinary citizens mind their own business much more often than police do. An ordinary citizen does not normally approach a stranger and ask him for identification or ask him what business he has in that location or ask him to reveal what is on his person, yet these are actions that Illinois courts have held do not effect a seizure when undertaken by police. See, e.g., People v. Tilden, 70 Ill. App. 3d 859, 863 (1979) (officer did not seize defendant by asking him to approach and produce identification); People v. Kennedy, 66 Ill. App. 3d 267, 270, 274 (1978) (officer did not seize defendant by approaching him as he walked along a highway at 1 a.m., asking if he was lost, and asking what was in the bag he was carrying); People v. Jordan, 43 Ill. App. 3d 660, 661 (1976) (defendant, who was running down a street at night, was not seized when officer asked him why he was running). “[W]here a police officer merely engages in conversation with an individual, and no restraint has been made upon the individual’s freedom to walk away from the officer, such an encounter does not constitute a stop even though the encounter was investigative in nature.” (Emphasis added.) Kennedy, 66 Ill. App. 3d at 273 . If, as is the case, ordinary citizens do not normally act in an investigative manner, then does the majority think that this statement of the law is not valid after today’s decision and that all investigative encounters between police and citizens are seizures?
The majority appears to believe that this encounter was a seizure because “what was being communicated to defendant *** was far different from the ‘wholly friendly exchanges of pleasantries,’ referred to in Terry.” 357 Ill. App. 3d at 422, quoting Terry, 392 U.S. at 13 , 20 L. Ed. 2d at 901 , 88 S. Ct. at 1875 . If the majority has read Terry as holding that a police-citizen encounter is either a “wholly friendly exchange of pleasantries” or a seizure, then the majority has not only fundamentally misunderstood Terry (the criterion in that case obviously is not the pleasantness of the encounter) but also lost sight of its own requirement that police-citizen encounters be like citizen-citizen encounters, for not even the latter are always “wholly friendly exchanges of pleasantries.”
In the decades since Terry, courts have labored hard to determine what transforms a police-citizen encounter into a seizure. If all the while the criterion was simply whether the officer acted as an officer during the encounter, then considerable ink was wasted. One may admire the majority’s zeal for simplicity while at the same time seeing its approach as absolutely alien to the law. “ ‘The mere knowledge by the person questioned that the person asking the questions is a police officer cannot in itself constitute a factor of threatened force because, were that so, every question put to a person under any circumstances by a self-identified police officer on duty would by that very fact constitute a Terry stop.’ ” People v. Tilden, 70 Ill. App. 3d 859, 862 (1979), quoting People v. Jordan, 43 Ill. App. 3d 660, 662-63 (1976). Whether a police officer identifies himself as such by his words or through his actions, the mere fact that the citizen knows that identity does not give rise to a seizure.
The majority of course emphasizes that its holding is not that “a police officer may never approach an individual seated in a car” (357 Ill. App. 3d at 422), yet elsewhere the reader is informed that the officer must approach the individual as would “a citizen simply stopping to have a conversation with” him (357 Ill. App. 3d at 421). That is, police must strip themselves of their official trappings. The majority cites no precedent for such a view precisely because such a view is absolutely unprecedented. If the majority’s approach were in fact the law, then what are the marks of proper citizen-like behavior, sanitized of police-like traits? The majority gives us some guidelines. First, an officer acting like a proper citizen would not park in the middle of the street, which not only is illegal for a private citizen to do but communicates “a sense of urgency.” 357 Ill. App. 3d at 421. Rather, an officer acting like a proper citizen would “simply [pull] up alongside” the individual’s car, thereby suggesting “nothing more than a casual encounter on the street.” (Emphasis added.) 357 Ill. App. 3d at 422. Here, the majority is seriously misguided. Police cannot afford to be casual in the performance of their duties. As Terry noted, police-citizen encounters may “begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation.” Terry, 392 U.S. at 13 , 20 L. Ed. 2d at 901 , 88 S. Ct. at 1875-76 . “American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.” Terry, 392 U.S. at 23 , 20 L. Ed. 2d at 907 , 88 S. Ct. at 1881 . “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23 , 20 L. Ed. 2d at 907 , 88 S. Ct. at 1881 . As I explain more fully below, the effect of the majority’s plea for casualness in police-citizen encounters is to force a wholly inappropriate choice on police who wish to obey the constitution: act in a disarming way, that is, dispense with precautions that are, in my view, “practical” and “realistic” (see 357 Ill. App. 3d at 421), or act not at all and leave the citizenry unprotected. I doubt the framers intended to dampen police initiative with such a Hobson’s choice.
Continuing with its unique analysis, the majority also informs us that, when approaching another’s car on foot, an officer acting like a proper citizen would not approach the driver’s window of the car from the area of the rear driver’s side but rather would “simply walk[ ] up to the window as an ordinary citizen typically would.” 357 Ill. App. 3d at 421. Third, an officer acting like a proper citizen would not shine a flashlight into and around a person’s car. 357 Ill. App. 3d at 422.
I cannot see how Officer Pate would have reduced the tension in the encounter by following the first two of these guidelines. As for the first, where does the law permit a citizen to double-park his car alongside another parked car to speak to its occupants? And it seems to me that Officer Pate would have communicated an even greater sense of urgency by blocking defendant’s car in its parking space than by parking in the middle of the street. Had Officer Pate simply double-parked beside defendant, a reasonable person in defendant’s position would have drawn the inference that Officer Pate wanted to engage defendant immediately, without having the time to park and approach on foot. As for the second of these guidelines, I confess an absolute inability to understand how Officer Pate created an impression of urgency by approaching defendant’s driver’s window from the rear. The majority’s geometrical analysis of this encounter is lost on me. 1 The simple fact is that the trajectory of a private citizen’s approach to a car is determined entirely from where he begins his approach. Depending on the circumstances, that citizen may well find himself approaching from the rear of the car. Has he then crossed the line into the unique province of police?
Finally, the majority counsels that a proper citizen would not shine a flashlight in and around a vehicle. This hardly matters, for Illinois courts have held that a police officer’s shining a flashlight into a car is not coercive. See People v. Holdman, 73 Ill. 2d 213, 220 (1978) (shining flashlight into moving car suspected to be connected with fugitive did not amount to coercion; the officers “were simply performing their official duty”); People v. Erby, 213 Ill. App. 3d 657, 662 (1991) (shining light into suspicious car parked near gas station was not a seizure; court held: “[Sjhining a light into a vehicle, especially a parked vehicle as is the case here, does not constitute a stop absent coercion or a threat of coercion by police officers”); cf. People v. Bunch, 207 Ill. 2d 7, 19 (2003) (show of authority in officer’s standing “just a foot from defendant and shining his flashlight in defendant’s face,” asking “ ‘What’s your name? Where you [sic] coming from?’ ”).
The majority asserts that a “practical, realistic inquiry” is superior to the rigidity of black-letter rules (357 Ill. App. 3d at 421), yet its approach here is neither practical nor realistic and may well have truly lethal effects. Fourth amendment jurisprudence has long justified the exclusionary rule on the supposition that the prospect of illegally seized evidence becoming a legal nullity in court will deter police from effecting illegal seizures. See People v. Tisler, 103 Ill. 2d 226, 247 (1984); People v. Bowery, 62 Ill. 2d 200, 203-04 (1975). Suppose, after the issuance of this opinion, a citizen in our judicial district calls the Village of Hampshire police department at 2:30 a.m. and reports that an unfamiliar man in an unfamiliar vehicle is parked along the curb outside the citizen’s house. The citizen requests that the police investigate the matter. Due to today’s opinion, when the dispatched police officer arrives on the citizen’s street, he knows that he risks violating the fourth amendment if he investigates the report while employing such safety measures as approaching the subject vehicle from the rear and shining a flashlight into the darkness within and around the vehicle. If the majority accepts the deterrence rationale for the exclusionary rule (as it must under current law), then it cannot issue today’s ruling without expecting the officer in my hypothetical situation to avoid using these safety measures. He might do so by conducting his investigation without these measures or he might (absurdly, it seems to me) delay his investigation until daylight so as to at least dispense with the need for the offending flashlight. Thus, the deterrent effect of today’s opinion may be fulfilled either in the officer’s disregard for personal safety or in his reckless postponement of his duty. Neither course, obviously, will serve the citizen who phoned in the report. I fear that what really will be deterred as a result of today’s decision is active police work at night. It is neither “realistic” nor “practical” to trammel peace officers in this way.
So caught up in what it considers the unique factual circumstances in this case (even though, as I explained above, factual uniqueness itself proves nothing), the majority fails to consider the concrete guidance that our appellate court has been given in reviewing a trial court’s disposition of a motion to suppress. In People v. Murray, 137 Ill. 2d 382, 390 (1990), the supreme court listed several circumstances 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.” Murray drew these factors from United States v. Mendenhall, 446 U.S. 544 , 64 L. Ed. 2d 497 , 100 S. Ct. 1870 (1980), and took them quite seriously. Finding that none of the factors were present in the facts before it, Murray concluded that no seizure had occurred. The majority apparently has a less complimentary view of the Mendenhall factors, for it acknowledges them only in remarking that, in Mendenhall, “the Court observed that the tone of an officer’s voice might convey to a reasonable person that he or she is not free to leave.” 357 Ill. App. 3d at 422. The majority then draws a forced comparison between the use of a flashlight and a peremptory tone of voice. This is not how precedent is to be acknowledged. In their wisdom, both the United States Supreme Court and our supreme court have not abandoned us to the situational decision-making that the majority oddly feels is its lot. The guidance is there if the majority would have it. None of the Mendenhall factors are present here, and that is quite obvious.
In addition to the Mendenhall factors, there are specific principles applicable here. First, “an individual is not seized for fourth amendment purposes when police ask questions of that individual, including a request for identification, so long as the officers do not convey by their words or actions to the person being questioned that compliance with their requests is required.” People v. Gherna, 203 Ill. 2d 165, 179 (2003). Second, and more specifically, “the mere approaching and questioning of a person seated in a parked vehicle does not constitute a seizure.” Murray, 137 Ill. 2d at 391 . This case hears no relevant factual differences from Murray, where the officers approached the defendant as he was sleeping in his car, which was legally parked on a frontage road. The officers approached the car, knocked on the window, woke the defendant, and then asked him to step out of the car and produce identification — actions, I hasten to add, that ordinary citizens would not take. As the defendant complied with these requests, the officers saw a handgun on the floor of the car and arrested the defendant. Finding none of the Mendenhall factors present, the supreme court held that the defendant was not seized until after the officers saw the handgun. Murray, 137 Ill. 2d at 390-93 .
Officer Pate’s initial encounter with defendant was no more coercive than the encounter in Murray. Officer Pate approached defendant, requested identification, and questioned him about his presence on the street. If at any time during this conversation defendant believed he was not free to leave, he had no more reason for this belief than did the defendant in Murray, who was awakened out of a sleep by police officers rapping on his window and requesting him not just to produce identification but to step out of the car as well. Of course, here the majority holds that a seizure occurred even before Officer Pate uttered a word to defendant.
The majority finds it “most notable” that I have not said whether a reasonable person in defendant’s position would have felt free to leave under the circumstances. 357 Ill. App. 3d at 422. However, because precedent casts such a controlling shadow here, my personal views (and the majority’s), unfettered by precedent, are irrelevant. Does the majority think that a reasonable person in the defendant’s position in Murray would feel free to leave? Obviously not, but an appellate court is bound to follow supreme court precedent no matter if it disagrees with that precedent.
This is not the first time that a decision of this district has read the fourth amendment far too restrictively as respects what constitutes coercion in a police-citizen encounter. See People v. Gonzalez, 324 Ill. App. 3d 15 (2001) (request for identification from passenger in car stopped for traffic violation was in itself coercive such that a reasonable person would not feel free to decline), rev’d, 204 Ill. 2d 220, 236 (2003) (rejecting “appellate court’s conclusion that the trial court implicitly and properly determined that defendant did not feel free to decline [the request for identification],” because such a request is “facially innocuous” and does not “increase the confrontational nature of the encounter”). If this case is heard by our supreme court, I feel reversal is once again inevitable.
The majority is correct that, later in this dissent, I note that Officer Pate’s angle of approach was a precautionary measure. But the fact that it is safer for an officer to approach from the rear does not mean that such an approach is more of a show of authority than approaching from a different angle that provides the citizen with a prolonged opportunity to observe the officer approach on foot. Moreover, the fact that one approach is safer does not mean that the other is the angle a private citizen would always take.