Recently, the Illinois Supreme Court granted an appeal in People v. Luedemann1, in which the outcome hinges on identifying the point at which the defendant was considered seized under the Fourth Amendment.2 The determination is difficult because the defendant, Luedemann, was in a parked car when the police officer approached,3 rather than being stopped in a moving vehicle. It is a foregone conclusion that a traffic stop constitutes a seizure within the meaning of the Fourth Amendment.4 A hard, fast rule does not exist, however, for identifying a "seizure" outside the context of a traffic stop.5 Deciding whether a seizure occurs is fact intensive and requires looking at the totality of the circumstances.6 A review of the Luedemann case illustrates how courts perform this analysis.
II. People v. Luedemann – Facts
On August 17, 2002, at approximately 2:40 a.m., the defendant, Derek Luedemann, was sitting in his car on a residential street in Hampshire smoking a cigarette.7 While on patrol, Officer Eric Pate approached Luedemann’s legally parked vehicle and noticed Luedemann reach toward the floorboard of the passenger seat.8 Luedemann returned upright, but Officer Pate said he then slouched down in his seat.9 While Officer Pate did not have information about any criminal activity, after he passed Luedemann’s vehicle he stopped his marked vehicle in the middle of the street and approached Luedemann.10
Officer Pate shined his flashlight on Luedemann’s car as he approached.11 Officer Pate said Luedemann’s window was down and the radio was playing, but Luedemann turned the engine off as he neared the vehicle.12 As Officer Pate walked along the "rear quarter panel of [Luedemann’s] car, he saw the neck of a brown glass bottle standing upright on the floorboard by the front passenger seat."13
When Officer Pate reached Luedemann’s window, he asked for identification and questioned what Luedemann was doing.14 Luedemann said he was waiting for his girlfriend to get home and pointed to the house he was parked in front of to indicate where his girlfriend lived.15 Three burglaries had occurred in the area within the previous week.16 Although Office Pate did not have a description of the burglar or of the offending car,17 this was the reason Officer Pate provided for continuing to question Luedemann.18 As the conversation continued, "Officer Pate noticed that [Luedemann’s] eyes were bloodshot and glassy, he smelled of alcohol, and he slurred his speech."19 Officer Pate called for back-up.20
Officer Pate positioned his car behind Luedemann’s and began the videotape recording system because he planned to administer a field sobriety test.21 When Officer Harris arrived, both officers approached Luedemann’s vehicle. The following occurred:
Officer Harris, who approached on the passenger side, saw an open Miller Lite bottle on the floorboard near the front passenger seat, which is where Officer Pate saw the brown glass bottle. Officer Harris advised Officer Pate about his discovery, noting that the bottle was one-third full and cold. [Luedemann] was asked to step out of his car, and Officer Pate administered three field sobriety tests. Although defendant did not stumble getting out of the car or walking to the rear of his car, he failed all three tests and was placed under arrest for DUI.22
The trial court granted Luedemann’s motion to suppress, reasoning that Officer Pate "did not possess any evidence that [Luedemann] was involved in any type of criminal activity."23 The trial court explained that "Officer Pate’s decision to stop [Luedemann] was a ‘hunch [that] turned out to be something that all policemen hope that their hunches turn out to be, but it was nothing more than a hunch.’"24 The trial court considered that Officer Pate was aware of burglaries in the area, but concluded that such information "was not sufficient to establish that the area was a ‘high crime area.’"25 The trial court boiled it down to "Officer Pate ‘essentially [seeing] a young man sitting in a car smoking a cigarette,’ and ‘this conduct [was] not sufficient to warrant the approach and questioning that took place.’"26
III. People v. Luedemann – Analysis
The appellate court adopted two findings of fact from the trial court that were relevant to the appeal. First, "that the area around the residential street was not a high-crime area."27 Second, was that "when Officer Pate approached [Luedemann], he observed only a young man sitting in a car smoking a cigarette."28
The State proposed two, alternative, arguments to justify Officer Pate’s actions.29 First, that "the encounter between Officer Pate and [Luedemann] was consensual, as Officer Pate was acting in his role pursuant to the community caretaker function of the police. Alternatively, the State argue[d] that the stop was justified by reasonable suspicion, in accordance with the dictates of Terry v. Ohio, 392 U.S. 1 (1969)."30 The majority rejected both arguments.31 The dissent agreed with the "majority’s analysis of whether and when a seizure may be justified as an exercise of the community caretaking function of police,"32 but took issue with the majority’s conclusion about when Luedemann was considered "seized" within the Fourth Amendment.
The point at which Luedemann was considered "seized" is critical because brief "Terry" seizures "must be supported by a reasonable suspicion of criminal activity."33 The majority concluded "the seizure occurred prior to the time Officer Pate allegedly observed the brown bottle on the floor of [Luedemann’s] car."34 To make the determination, the court was required to look at the totality of the circumstances.35 Based on the totality of the circumstances, the court announced that a "seizure occurs when a reasonable person would not feel free to leave under the circumstances."36
The court points to two occurrences that show a reasonable person in Luedemann’s position would not have felt free to leave. The first is that Officer Pate stopped his vehicle in the middle of the road.37 The court reasoned that since ordinary citizens do not normally stop their vehicles in the roadway, Officer Pate showed his authority when he did so.38 Secondly, the court found Officer Pate’s shining of his flashlight in and around Luedemann’s vehicle a show of authority.39 The court explained that:
[S]imply pulling up alongside a person sitting in a car and asking a question would communicate nothing more than a casual encounter on the street. Officer Pate’s actions, however, given the urgency implicit in his stopping in the middle of the street and the confrontational nature of shining a light into [Luedemann’s] car, were certainly more like a traffic stop initiated by turning on the squad’s overhead lights or siren than they were a casual, consensual encounter.40
The court declared that determining if "a reasonable person in [Luedemann’s] position would have felt free to leave under the circumstances… [was] the only issue relevant to whether a seizure occurred."41 The court acknowledged that the case presented an "extremely close question," but ultimately concluded that a reasonable person in Luedemann’s position would not have felt free to leave.42
Having determined that Luedemann was "seized" prior to Officer Pate seeing the brown bottle; the court next questioned whether Officer Pate was justified in approaching Luedemann.
The State argue[d] that the officer had reasonable and articulable suspicion that [Luedemann] was involved in a crime because (1) the street on which [Luedemann] was parked was the target of some burglaries; (2) [Luedemann] was seated in his parked car at 2:40 a.m.; (3) the officer observed furtive movements; and (4) [Luedemann] slouched down in his seat as the officer drove past him.43
The court explained why each reason provided by the State falls short of showing that Officer Pate had a reasonable and articulable suspicion that Luedemann was involved in criminal activity.44
The dissent disagreed with the majority’s conclusion because the dissent concluded that Luedemann was not "seized" until sometime after Officer Pate saw the brown bottle.45 The inquiry into whether Officer Pate had a reasonable and articulable suspicion that Luedemann was involved in criminal activity changes dramatically if Luedemann is not determined to be "seized" until sometime after Officer Pate saw the brown bottle.
IV. People v. Luedemann – Dissent
Justice O’Malley dissented because he believed "the majority’s conclusion that [Luedemann] 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…."46 The dissent said a seizure occurs "only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."47 The dissent went on to argue that the encounter between Officer Pate and Luedemann was similar to other Illinois cases where it was determined a seizure had not occurred.48 The dissent also pointed to Illinois precedent cases that indicate shining a flashlight into a vehicle is not coercive.49
The dissent said the majority ignored the guidance provided by the Illinois Supreme Court and United States Supreme Court when concluding Luedemann was seized at the time Officer Pate approached Luedemann’s vehicle.50 Specifically, the dissent pointed out that in Murray the Illinois Supreme Court determined whether a seizure had occurred by applying the factors listed in U.S. v. Mendenhall.51 The Murray decision quotes the Mendenhall factors along with other key language from Mendenhall as follows:
Mendenhall lists four examples of circumstances which may be indicative of a seizure, even where the person did not attempt to leave: (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. ‘In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.52
The dissent said the Murray decision is to be used as guidance in determining when a seizure occurs,53 but the majority chose not to follow it by focusing on the general language that a seizure occurs when "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."54
The Luedemann decision illustrates the complexity of determining the point at which a seizure occurs. The majority made the determination by relying on the phrase "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."55 The dissent on the other hand, focused on the phrase "only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen"56 to determine if a seizure had occurred. Interestingly, both phrases are adopted by the Illinois Supreme Court in the Murray decision.57 Perhaps the Illinois Supreme Court, in granting an appeal in this case, intends to clarify how the language from Murray is to be applied. If so, this would also give the Illinois Supreme Court an opportunity to explain how much weight to give the Mendenhall factors.
The dissent argued that the majority "read the fourth amendment far too restrictively" and will be reversed by the Illinois Supreme Court.58 Given that "the great weight of authority" that has addressed this issue has not followed the majority’s approach,59 Luedemann will probably be reversed. The dissent’s position receives additional support from Professor Wayne R. LaFave’s treatise on the Fourth Amendment. Professor LaFave states:
What does it mean, then, to say that a reasonable person ‘would have believed that he was not free to leave’? Mendenhall, Royer and Delgado make it perfectly clear that it takes something more than mere questioning by a police officer. Thus, if an officer merely walks up to a person standing or sitting in a public place (or, in deed, who is seated in a vehicle located in a public place) and puts a question to him, this alone does not constitute a seizure (citations omitted).60
In the event Luedemann is affirmed by the Illinois Supreme Court, Illinois would stray from the great weight of authority that has decided this issue; perhaps far enough to prompt the United States Supreme Court to step in to clarify how courts are to determine when a seizure occurs.
1 People v. Luedemann, 2005 Ill. App. LEXIS 409.
2 People v. Luedemann, 357 Ill.App.3d 411, 828 N.E.2d 355 (2nd Dist. 2005).
3 Id. at 413.
4 See Whren v. United States, 517 U.S. 806, 809-10; People v. Gonzalez, 204 Ill.2d 220, 789 N.E.2d 260 (2003).
5 See Illinois v. Gates, 462 U.S. 213 (1983).
6 United States v. Mendenhall, 446 U.S. 544 (1980).
7 Luedemann, 357 Ill.App.3d at 414.
13 Luedemann, 357 Ill.App.3d. at 415.
17 Id. at 424.
18 Id. at 415.
19 Luedemann, 357 Ill.App.3d. at 415.
23 Id. at 416.
25 Luedemann, 357 Ill.App.3d. at 416.
27 Id. at 417.
29 Id. at 416-17.
30 Id. at 417.
31 Luedemann, 357 Ill.App.3d. at 417.
32 Id. at 427 (O’Malley, J., Dissenting).
33 People v. Murray, 137 Ill.2d 382, 387, 560 N.E.2d 309, 311 (1990) (quoting Terry v. Ohio, 392 U.S. 1 (1968)).
34 Luedemann, 357 Ill. App. 3d. at 420.
35 Id. (quoting United States v. Mendenhall, 446 U.S. 544 (1980)).
36 Id..at 421 (quoting United States v. Mendenhall, 446 U.S. 544 (1980)).
37 Id..at 421.
40 Luedemann, 357 Ill.App.3d. at 422.
41 Id. (quoting People v. Robinson, 167 Ill.2d 397, 406, 657 N.E.2d 1020 (1995)).
42 Id. at 422.
43 Id. at 424.
44 See Luedemann, 357 Ill.App.3d at 424-25 ("Lastly, even when we consider all of these facts collectively, we cannot conclude that Officer Pate possessed a reasonable and articulable suspicion that defendant was involved in a crime. In order to justify a stop, the situation the officer faces must be so far from the ordinary that any compentent officer in a similar position would act without hast. The facts available to Officer Pate fall short of this standard.") (citations omitted).
45 Id. at 427-35 (O’Malley, J., Dissenting).
46 Id. at 427 (O’Malley, J., Dissenting).
47 Id. at 428 (quoting People v. Murray, 137 Ill.2d 382, 387-88, 560 N.E.2d 309 (1990)).
48 People v. Gherna, 203 Ill.2d 165, 179, 784 N.E.2d 799 (2003) ("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. Murray, 137 Ill.2d 382, 391, 560 N.E.2d 309 (1990) ("This holding is consistent with the great weight of authority. A number of courts have held that the mere approaching and questioning of a person seated in a parked vehicle does not constitute a seizure." (citations omitted)); People v. Tilden, 70 Ill.App.3d 859, 863, 388 N.E.2d 1046 (1979) ("it cannot be said that the request to approach and produce identification constituted a Terry stop"); People v. Kennedy, 66 Ill.App.3d 267, 383 N.E.2d 713 (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); and People v. Jordan, 43 Ill.App.3d 660, 661, 357 N.E.2d 159 (1976) (defendant, who was running down a street at night, was not seized when officer asked him why he was running).
49 Luedemann, 357 Ill.App.3d at 432 (O’Malley, J., Dissenting).
50 Id. at 433-34 (O’Malley, J., Dissenting).
51 Murray, 137 Ill.2d at 390.
52 Id. (quoting United States v. Mendenhall, 446 U.S. 544 (1980)).
53 Luedemann, 357 Ill.App.3d. at 433 (O’Malley, J., Dissenting).
54 Id. at 423.
55 Id. at 420-23.
56 Id. at 428 (O’Malley, J., Dissenting).
57 Murray, 137 Ill.2d at 387-89 ("Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure has occurred." and "We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.").
58 Luedemann, 357 Ill.App.3d. at 434-35 (O’Malley, J., Dissenting).
59 Murray, 137 Ill.2d at 391-92 ("A number of courts have held that the mere approaching and questioning of a person seated in a parked vehicle does not constitute a seizure.") (citations omitted).
60 WAYNE R. LAFAVE, SEARCH AND SEIZURE Vol. 4 § 9.4(a) at 410 to 438 (2004).
Jon D. Hoag is a third-year law student at Northern Illinois University College of Law. He is an assistant editor on the Northern Illinois University Law Review.