Early on a Saturday morning in August 2002, defendant, Derek M. Luedemann, was sittingin his car in front of his girlfriend's house, waiting for her to return home. Officer Eric Pate drove by,noticing that defendant's car was running and he was smoking in the car. Officer Pate drove pastdefendant, parked in the middle of the street, approached defendant, and observed that defendant wasintoxicated. Defendant was subsequently arrested for driving while under the influence of alcohol(DUI) (625 ILCS 5/11--501(a)(2) (West 2002)), in case No. 02--DT--1233 (the DUI case). Following this arrest, defendant's car was searched. A substance containing a methylenedioxyamphetamine derivative was found in the car, leading to defendant's indictment for unlawfulpossession of a controlled substance (720 ILCS 570/402(c) (West 2002)), in case No. 02--CF--1904(the controlled substances case). In both cases, defendant moved to quash his arrest and suppressthe evidence seized (725 ILCS 5/114--12 (West 2002)), arguing that Officer Pate lacked a reasonablebelief that defendant was involved in criminal activity. The trial court in the DUI case granted themotion. Based on this ruling, defendant moved to collaterally estop the State from contesting themotion to suppress in the controlled substances case. The trial court granted that motion. The Statefiled a certificate of impairment and timely appealed (see 188 Ill. 2d R. 604(a)(1)), contending thatthe trial court erred when it (1) granted the motion to suppress in the DUI case (appeal No. 2--03--1303) and (2) collaterally estopped the State from contesting the motion to suppress in the controlledsubstances case (appeal No. 2--04--0184). We disagree with the State's first contention and affirmthe trial court's judgment in appeal No. 2--03--1303. However, we agree with the State's secondcontention and vacate the trial court's judgment in appeal No. 2--04--0184.

As an initial matter, we note that defendant's driving privileges were summarily suspendedwhen he was arrested for DUI, and he petitioned to rescind that suspension (625 ILCS 5/2--118.1(b)(West 2002)). The evidence presented at the rescission hearing was stipulated to at the DUIsuppression hearing and comprised the only evidence presented at that hearing. That evidenceconsisted of Officer Pate's testimony and a videotape revealing what transpired during three fieldsobriety tests that defendant failed.

At the rescission hearing, Officer Pate testified that he was on patrol in his marked squad caron August 17, 2002, when he saw defendant sitting in a car on a residential street in Hampshire atapproximately 2:40 a.m. Defendant was smoking a cigarette in the driver's seat of his car, which waslegally parked. Although many other cars were parked along that street, those cars were notoccupied. As Officer Pate drove closer to defendant's car, he saw defendant reach towards thefloorboard of the front passenger seat. Officer Pate was approximately 20 to 30 feet away fromdefendant's car when he made this observation, and he stated that he could not see specifically whatdefendant was doing. As Officer Pate continued to drive closer to defendant's car, defendant returnedto a seated position but "slumped or slouched down a little bit ***, bending [his] knees and sittingdown lower in the seat." Officer Pate then drove past defendant's car and parked his squad car in themiddle of the street. At that time, Officer Pate lacked any information about defendant committinga crime or about any criminal activity in the area that night.

As Officer Pate, who was in uniform, approached defendant, he shined his flashlight ondefendant's car and the area around it. Defendant's car was running, the driver's-side window wasdown, and the radio was on. As Officer Pate neared defendant's car, he observed defendant turn theengine off. Officer Pate testified that he believed that defendant turned the engine off in order to turndown the radio, and he clarified that he never asked defendant to turn the engine off. When OfficerPate was standing by the rear quarter panel of the driver's side of defendant's car, he saw the neck ofa brown glass bottle standing upright on the floorboard by the front passenger seat. Although OfficerPate could not see a label on the bottle and did not know what the bottle contained, he did notice thatthe bottle was uncapped.

While standing next to the driver's side of defendant's car, Officer Pate asked defendant forhis identification, which defendant produced. The officer also asked defendant why he was sittingin his car on that street. Defendant said that he was waiting for his girlfriend to return to her home. Although defendant could not give Officer Pate his girlfriend's address, he did point to her house,which he was parked in front of. Officer Pate testified that he continued to question defendant aboutwhat he was doing on that street, because three homes were burglarized at the end of that streetwithin the last week. Although Officer Pate knew that the burglaries were committed between 5 p.m.and 8 a.m., he did not have a description of the burglar or of the vehicle the burglar might havedriven. In addition to homes, Officer Pate knew, some cars were burglarized in the area. During hisconversation with defendant, Officer Pate noticed that defendant's eyes were bloodshot and glassy,he smelled of alcohol, and he slurred his speech. These observations led Officer Pate to requestassistance from Officer Harris.

While waiting for Officer Harris to arrive, Officer Pate parked his squad car behinddefendant's car and started the videotape recording system in his squad car. Officer Pate explainedthat he started videotaping his encounter with defendant because police department proceduresrequire officers to record field sobriety tests, which Officer Pate planned to administer.

When Officer Harris arrived, he and Officer Pate approached defendant. Officer Harris, whoapproached on the passenger side, saw an open Miller Lite bottle on the floorboard near the frontpassenger seat, which is where Officer Pate saw the brown glass bottle. Officer Harris advisedOfficer Pate about his discovery, noting that the bottle was one-third full and cold. Defendant wasasked to step out of his car, and Officer Pate administered three field sobriety tests. Althoughdefendant did not stumble getting out of the car or walking to the rear of his car, he failed all threetests and was placed under arrest for DUI. During a subsequent search of defendant's vehicle, theofficers found a substance containing a methylenedioxy amphetamine derivative.

Based on this testimony and the videotape, the trial court granted defendant's petition torescind the statutory summary suspension of his driving privileges. In reaching this conclusion, thetrial court found that, when Officer Pate stopped defendant, the officer did not possess any evidencethat defendant was involved in any type of criminal activity. Rather, the trial court noted that OfficerPate merely had a hunch that defendant had committed a crime.

Relying on this same reasoning, the trial court granted defendant's motion to suppress in theDUI case. The State timely moved to reconsider and for more detailed findings. In addressing themotion for more detailed findings, the trial court stressed that Officer Pate's basis to stop defendantwas a "hunch [that] turned out to be something that all policemen hope that their hunches turn outto be, but it was nothing more than a hunch." The trial court then denied the motion to reconsider,noting that, although Officer Pate's testimony concerning the burglaries in the area was credible, suchtestimony was not sufficient to establish that the area was a "high crime area." The trial courtemphasized that Officer Pate "essentially saw a young man sitting in a car smoking a cigarette," and"[t]his conduct [was] not sufficient to warrant the approach and questioning that took place." TheState filed its notice of appeal and certificate of impairment in the DUI case on November 24, 2003.

Based on the DUI ruling, defendant moved to collaterally estop the State from contesting themotion to suppress in the controlled substances case. The trial judge in the controlled substancescase, who was not the same judge who presided over the DUI case, granted the motion on January28, 2004, finding that the parties were barred from relitigating the basis for defendant's stop and arrestbecause the parties and the issues were the same in both proceedings and a final judgment wasentered in the DUI case. The State timely appealed, and we consolidated the appeals.

Interaction between the citizenry and the police can be divided into nonconsensual andconsensual encounters. See People v. Murray, 137 Ill. 2d 382, 387 (1990). The former consist ofarrests and Terry stops. See Murray, 137 Ill. 2d at 387. The latter do not infringe upon any interestprotected by the fourth amendment and therefore require no justification. People v. Smith, 331 Ill.App. 3d 1049, 1054 (2002). The State argues that the encounter between Officer Pate and defendantwas consensual, as Officer Pate was acting in his role pursuant to the community caretaker functionof the police. Alternatively, the State argues that the stop was justified by reasonable suspicion, inaccordance with the dictates of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). We reject both contentions.

Before addressing the State's arguments, we consider our standard of review. Whenreviewing a ruling on a motion to quash an arrest and suppress the evidence, our standard of reviewis usually twofold. We accord great deference to the trial court's factual findings and credibilitydeterminations and reverse those conclusions only if they are against the manifest weight of theevidence. People v. Gherna, 203 Ill. 2d 165, 175 (2003); People v. Sorenson, 196 Ill. 2d 425, 431(2001). A finding is against the manifest weight of the evidence only if the opposite conclusion isclearly evident. People v. Davis, 352 Ill. App. 3d 576, 579 (2004). After reviewing the trial court'sfactual findings, we review de novo the trial court's ultimate legal ruling. Sorenson, 196 Ill. 2d at431.

Here, the trial court made two factual findings that are relevant to the resolution of thisappeal. First, the trial court found that the area around the residential street was not a high-crimearea. Second, the trial court found that, when Officer Pate approached defendant, he observed onlya young man sitting in a car smoking a cigarette. After reviewing the record, we conclude thatneither of these findings is against the manifest weight of the evidence.

We also note that, though the trial court made no explicit finding on the matter, contradictoryevidence existed in the record regarding one key fact. Defense counsel pointed out the followingdiscrepancy at the hearing. Pate testified that he observed the neck of a brown bottle on the floor infront of the passenger seat as he approached defendant's vehicle. He was at the rear driver's-sidequarter panel when he made this observation. The trial court also observed a videotape of eventssurrounding defendant's arrest, although the tape does not memorialize the initial part of theencounter between Pate and defendant. In the tape, a second officer removes the bottle fromdefendant's car. Prior to doing so, the second officer appears to move the passenger seat forward. Moreover, the officer was bent over facing toward the rear of the vehicle when he removed the bottle. Thus, it appears that the bottle was removed from the backseat area of the car, which contradictsPate's testimony as to its location. This discrepancy raises a question of fact that goes directly to thequestion of when Pate acquired a reasonable and articulable suspicion sufficient to justify a Terrystop. Typically, however, we construe the record in the light most favorable to the trial court'sdecision and any gaps in the record are resolved against the appellant. See People v. Hurtado, 208Ill. App. 3d 110, 115 (1991); People v. Majer, 131 Ill. App. 3d 80, 83 (1985).

The State contends that Officer Pate was acting within a community caretaking or publicsafety function when he approached defendant and that consequently his encounter with defendantwas consensual and not a seizure. Citing People v. Smith, 266 Ill. App. 3d 362 (1994), the Statecontends that the encounter was proper because nothing prevents officers from approaching andposing questions to an individual. The State misunderstands the nature of the community caretakerexception; this is understandable, however. As we noted in People v. Mitchell, No. 2--03--1107(March 3, 2005), numerous cases commit the same mistake.

Indeed, it is manifestly illogical to say that an encounter is consensual because of the role inwhich the police were acting. Consent, by definition, must come from the person who is the subjectof the encounter. A person may object to any contact with the police, regardless of whether they arefunctioning in a community caretaking or crime control role. To call an encounter consensualbecause an officer is acting as a community caretaker would allow an officer to force a "consensual"encounter upon a person who desires no contact with the police under any circumstances. If thecommunity caretaker exception is to justify a stop, it must be because the stop is reasonable. Allowing the doctrine to magically transform what is in fact a nonconsensual encounter into aconsensual one would be to perpetuate a ridiculous legal fiction.

Moreover, if any encounter between an individual and a police officer that involves nocoercion or show of authority is said to fall under the community caretaker exception, then the termserves no analytical function. Indeed, in Illinois case law, the doctrine has been treated synonymouslywith consensual encounters. See, e.g., People v. Harris, 207 Ill. 2d 515, 522 (2003); People v.Murray, 137 Ill. 2d 382, 387-88 (1990); People v. Laake, 348 Ill. App. 3d 346, 349 (2004). Conversely, an earlier Illinois case recognized that an inventory search was reasonable under thecommunity caretaker exception, not because it was not a search, but because one legitimate goal ofthe search was to ascertain the value of the property the police needed to secure on its owner's behalf. People v. Ocon, 221 Ill. App. 3d 311, 314-15 (1991). Although it concerned a search, Ocon properlyrecognized that action taken under the community caretaker exception is justified not because it doesnot intrude upon an interest protected by the fourth amendment (U.S. Const., amend. IV), but, rather,because it intrudes upon such an interest in a way that is reasonable. After all, the fourth amendmentforbids only unreasonable searches and seizures. People v. Hall, 352 Ill. App. 3d 537, 545 (2004).

As it has developed in other jurisdictions, the community caretaker doctrine has an analyticalcontent distinct from arrests, Terry stops, and consensual encounters. A classic example of the typeof stop to which the community caretaker exception applies appears in State v. Chisholm, 39 Wash.App. 864, 696 P.2d 41 (1985). In that case, a police officer observed a pickup truck being drivenwhile a hat was resting on top of it. The officer, who was driving an unmarked vehicle, could not getthe truck to stop. He radioed ahead to a marked unit, who stopped the defendant to inform himabout the hat. Upon approaching the car, the second officer observed an open can of beer in plainview. The court observed that standards such as probable cause and reasonable suspicion have noplace where a stop is made to assist the driver of a vehicle. Chisholm, 39 Wash. App. at 866, 696P.2d at 43. Instead, the court held that the reasonableness of the stop must be judged by balancingthe "individual's interest in proceeding about his business unfettered by police interference" and "thepublic's interest in having police officers perform services in addition to the traditional enforcementof penal and regulatory laws." Chisholm, 39 Wash. App. at 867, 696 P.2d at 43. Other jurisdictionshave applied the community caretaker function in a similar fashion. See Commonwealth v. Leonard,422 Mass. 504, 509-10, 663 N.E.2d 828, 832 (1996); State v. Anderson, 142 Wis. 2d 162, 417N.W.2d 411 (1987); Crauthers v. State, 727 P.2d 9, 10-11 (Alaska App. 1986) ("We hold thatTrooper Miller's action in engaging his emergency lights and contacting the defendant, following whathe reasonably interpreted to be a request for assistance from the Crauthers vehicle, to be permissibleunder the 4th Amendment").

Thus, the community caretaker exception allows an actual seizure where the seizure isreasonable under certain circumstances. It has no place in a discussion regarding whether a seizureoccurred in the first instance. Moreover, it is a doctrine that will rarely be invoked, typically havingrelevance only in the unusual circumstance where a police officer effectuates a seizure of an individualfor the purpose of helping the individual and evidence of a crime is then found in plain view. Parenthetically, courts that have applied the doctrine in this manner have been willing to inquire intothe subjective mental state of the police so that the doctrine does not become a vehicle for stateoverreaching. See, e.g., Anderson, 142 Wis. 2d at 169, 417 N.W.2d at 414 (holding that theexception applies when a seizure occurs, the police were engaged in "bona fide community caretakeractivity," and the public's interest in the police activity in question outweighs the intrusion on theindividual's right to be let alone). In short, the community caretaker exception is a distinct doctrinehaving nothing to do with consensual encounters, and its invocation in this case is both improper andunnecessary.

The State's second contention is that the encounter was justified because it was based onreasonable and articulable suspicion of criminal activity. Reasonableness pursuant to the fourthamendment generally requires a warrant supported by probable cause. People v. Love, 199 Ill. 2d269, 275 (2002). However, there are exceptions to the warrant requirement, one of which is a stoppursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed 2d 889, 88 S. Ct. 1868 (1968). People v. Brown,343 Ill. App. 3d 617, 622 (2003).

Determining whether a stop was constitutional involves a two-step process. People v. Croft,346 Ill. App. 3d 669, 675 (2004). First, we decide whether the stop was justified at its inception, andif it was, we then determine whether the scope of the stop was proportional to the circumstances thatjustified the stop in the first place. Croft, 346 Ill. App. 3d at 675. Here, we are concerned withwhether the stop was justified at its inception.

A court objectively considers whether a stop was proper. Croft, 346 Ill. App. 3d at 675. Welook at the facts available to the officer and ask whether the officer's action was appropriate. Croft,346 Ill. App. 3d at 675. An investigatory stop is proper if the officer can point to specific, articulablefacts that, when combined with the rational inferences derived from those facts, provide reasonablesuspicion that the person seized has committed or is about to commit a crime. Village of Mundeleinv. Thompson, 341 Ill. App. 3d 842, 848 (2003). The facts supporting reasonable suspicion do notneed to constitute probable cause (Brown, 343 Ill. App. 3d at 622) and can arise even when noviolation of the law was witnessed (People v. Scott, 249 Ill. App. 3d 597, 601 (1993)). However,a mere hunch is insufficient to justify a Terry stop. Brown, 343 Ill. App. 3d at 622.

We must first determine at what point defendant was seized so that we may determine whatfacts were available to the officer at the time of the seizure. We believe that the seizure occurredprior to the time Officer Pate allegedly observed the brown bottle on the floor of defendant's car. Indetermining whether a seizure has occurred, a court must look to the totality of the circumstances.United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877(1980); People v. Ortiz, 317 Ill. App. 3d 212, 220 (2000); A seizure occurs when a reasonable personwould not feel free to leave under the circumstances. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at509, 100 S. Ct. at 1877. By advocating an analysis based on the totality of the circumstances, theSupreme Court eschewed reliance on rigid, technical, black-letter rules in favor of a practical, realisticinquiry. See Illinois v. Gates, 462 U.S. 213, 230-40, 76 L. Ed. 2d 527, 543-49, 103 S. Ct. 2317,2328-32 (1983). In this sense, then, every case like this one is sui generis in that no two factualsituations are identical. Precedent may provide some insight; however, common sense must be ourmain guide in assessing the totality of the circumstances and determining whether a reasonable personin defendant's position would feel free to leave.

Under the circumstances presented here, a reasonable person would not feel free to simplydrive away as Officer Pate approached. The encounter between defendant and Officer Pate beganwhen Officer Pate drove past defendant and stopped his squad car in the middle of the road. Stopping the car in the middle of the road would have conveyed two things to a reasonable personin defendant's position. First, it communicated a sense of urgency on Officer Pate's part. Second,private citizens cannot, and simply do not, stop their cars in the middle of the road and block trafficunder normal circumstances. See 625 ILCS 5/11--1304 (West 2002). Officer Pate's actions wereconsistent with those of a police officer initiating formal contact with a suspect, not those of a citizensimply stopping to have a conversation with defendant. By stopping in the middle of the roadway,Officer Pate was essentially demonstrating his authority as a police officer. Additionally, as heapproached defendant's car, Officer Pate shined a flashlight around and into it. Again, private citizensdo not behave in this manner. Likely, any one of us would feel threatened, or at least imposed upon,if a stranger approached in this manner. Also, Officer Pate approached the car from the rear driver's-side quarter panel, rather than simply walking up to the window as an ordinary citizen typicallywould. The message that Officer Pate's actions conveyed to defendant was clear--"I am interestedin you and I will speak to you right now." No ordinary citizen, the majority of whom constitute thehypothetical reasonable person, would feel free to simply start his or her car and drive away. Pretending otherwise completely disregards both common sense and the Supreme Court's admonitionin Mendenhall that a person is seized when, "in view of all of the circumstances surrounding theincident, a reasonable person would have believed that he was not free to leave." (Emphasis added.) Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

In Mendenhall, the Court observed that the tone of an officer's voice might convey to areasonable person that he or she is not free to leave. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at509, 100 S. Ct. at 1877. That Officer Pate shined a flashlight into defendant's car is analogous. Itis intrusive, and, just as may be conveyed by certain tones of voice, it suggests confrontation. Ordinary people do not go about shining lights at each other or around or into their personal effectsand private spaces. Conversely, simply pulling up alongside a person sitting in a car and asking aquestion would communicate nothing more than a casual encounter on the street. Officer Pate'sactions, however, given the urgency implicit in his stopping in the middle of the street and theconfrontational nature of shining a light into defendant's car, were certainly more like a traffic stopinitiated by turning on the squad's overhead lights or siren than they were a casual, consensualencounter. We do not mean to imply that a police officer may never approach an individual seatedin a car. This case presents an extremely close question, and we believe that, based on the evidencepresented in this case, a reasonable person would not have felt free to leave, given the totality of thecircumstances, prior to the point when Officer Pate allegedly observed the brown bottle.

The dissent disagrees with this conclusion. We find it most notable that nowhere does thedissenting justice state that a reasonable person in defendant's position would have felt free to leaveunder the circumstances. That determination is the only issue relevant to whether a seizure occurred. People v. Robinson, 167 Ill. 2d 397, 406 (1995). How a person who is confronted by an officer whostops suddenly in the middle of a street, blocking traffic, illuminates the area including the interior ofthe vehicle in which the person sits, and approaches in a manner designed to maximize the officer'sposition in case of a confrontation would feel free to simply drive away was not clear to the trialjudge and remains unclear to us. The first factor we rely on--stopping in the middle of the street andblocking the roadway--is a show of official authority. The second--illuminating the interior of thevehicle--conveys a sense of intrusiveness and confrontation. Our observation that ordinary citizensdo not behave in such a manner simply recognizes the reality that what was being communicated todefendant under the present circumstances was far different from the "wholly friendly exchanges ofpleasantries" referred to in Terry. Terry, 392 U.S. at 13, 20 L. Ed. 2d at 901, 88 S. Ct. at 1875. While the dissent professes that "[t]he majority's geometrical analysis of this encounter is lost on me"(slip op. at 27), it explains the relevance of these factors a short time later. The dissent characterizesOfficer Pate's actions as "employing such safety measures as approaching the subject vehicle from therear." Slip op. at 28. In other words, Officer Pate was treating defendant as a suspect and, in fact,a dangerous suspect. It strains credulity to suggest that the employment of such measurescommunicated nothing to defendant.

This brings us to a related point raised by the dissent, officer safety. This is certainly alegitimate concern. It does not, however, immunize from constitutional scrutiny all actions taken inits name. Most likely, the safest manner for an officer to approach an unknown individual would bewith his or her gun drawn and trained upon that individual. We know, however, from Mendenhall,446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877, that a display of a weapon is highlyindicative of a seizure despite any contribution it might make to officer safety. The fourth amendmentprotects citizens, not the State. If, in the name of officer safety, an officer chooses to take certainactions that amount to a seizure, that may be understandable under certain circumstances. However,if those actions are taken absent some justification for a seizure, the State is not entitled to utilize theirfruits in a criminal prosecution. The essential fact of this case is that an individual was sitting in hislawfully parked vehicle. All else follows from this innocent activity. There is no indication that somereasonable, articulable suspicion existed that defendant was in some way dangerous.

The dissent's use of Mendenhall ignores the Supreme Court's clear directive that whether aseizure occurred is to be judged in light of the totality of the circumstances. Undoubtedly,Mendenhall does set forth a list of factors that may be relevant to determining whether a seizure hasoccurred. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. However, as boththe United States and Illinois Supreme Courts make clear, these are but examples of things that areindicative of a seizure. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877;Murray, 137 Ill. 2d at 390-91. While the presence of such factors may be highly indicative of theoccurrence of a seizure, their absence says virtually nothing. Instead, courts must evaluate the factsbefore them in a practical and realistic manner, as the Supreme Court has mandated by directingcourts to make these determinations in light of the totality of all of the circumstances surrounding theencounter. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877 ("We conclude thata person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of thecircumstances surrounding the incident, a reasonable person would have believed that he was not freeto leave").

The dissent improperly focuses upon policy considerations when it criticizes our employmentof a practical, realistic inquiry, rather than black-letter rules, in evaluating the facts of this case. Seeslip op. at 28. The dissent further asserts that our analysis is neither practical nor realistic and thatit "may well have truly lethal effects." Slip op. at 28. Our reference to the practical and realisticrelates to the Supreme Court's direction to consider cases such as these in light of the totality of thecircumstances. The facts are to be analyzed in a practical and realistic manner. The Supreme Courtwas not suggesting that courts engage in any type of rulemaking that they consider prudent. Thedissent, on the other hand, focuses on what it considers practical and realistic to reshape the balancebetween state interests and individual interests established by the fourth amendment. Such policydecisions were made by the founders long ago, when they crafted the fourth amendment, and theSupreme Court, when it applied that amendment in cases like Mendenhall.

Next, we must determine whether the facts available to Officer Pate at the time of the seizurejustified it. The State argues that the officer had reasonable and articulable suspicion that defendantwas involved in a crime because (1) the street on which defendant was parked was the target of someburglaries; (2) defendant was seated in his parked car at 2:40 a.m.; (3) the officer observed furtivemovements; and (4) defendant slouched down in his seat as the officer drove past him. We cannotconclude that these facts amounted to reasonable and articulable suspicion of criminal activity.

First, the fact that defendant was seen in a neighborhood where some homes and vehicleswere burglarized did not create a reasonable belief that defendant was involved in a crime. See Croft,346 Ill. App. 3d at 675-76. Although Officer Pate was aware of the burglaries, he did not have adescription of the burglar or the vehicle the offender may have used. Also damaging to the State'sposition is the fact that the neighborhood was not a "high crime area," which, even in itself, does notjustify stopping an individual. See People v. Parra, 352 Ill. App. 3d 584, 588 (2004).

Second, the time of day did not give Officer Pate a basis to stop defendant. Despite the earlyhour, Officer Pate only observed defendant smoking a cigarette in his legally parked car. Althoughno one else was sitting in a car on the street at 2:40 a.m. on that Saturday, there were numerous othervehicles parked along that street. When Officer Pate saw defendant, he did not know whetherdefendant was a resident of one of the homes located on that street, whether he was parked in frontof the house waiting for a friend to exit, or whether he was waiting for a friend to return home, whichdefendant claimed he was doing. Given these facts, Officer Pate had no reason to suspect defendantof criminal activity.

Third, we find that defendant's act of reaching towards the floorboard by the passenger seatdid not give Officer Pate a basis to stop defendant. In People v. Mills, 115 Ill. App. 3d 809, 810-11(1983), the arresting officer saw the defendant, who was parked in a municipal parking lot, quicklymove towards the floorboard of his car. This court found this furtive movement insufficient to createa reasonable belief that criminal activity was afoot because such behavior could be nothing more thanan innocent act. Mills, 115 Ill. App. 3d at 814-15. We see no basis to depart from the reasoning inMills.

Fourth, the fact that defendant slouched down in his seat as Officer Pate drove past him addednothing to create a reasonable and articulable suspicion of criminal activity. In People v. Gottenborg,41 Ill. App. 3d 8, 10 (1976), the officer saw the defendant "slinking down" in the driver's seat of hiscar. The appellate court determined that the defendant's act did not give the officer a basis to searchthe defendant's vehicle following his arrest because such behavior "could just as easily be consistentwith innocent actions, when the conduct of young men during a warm summer evening isconsidered." Gottenborg, 41 Ill. App. 3d at 10. Although, as we noted in Mills, probable cause toarrest is different from reasonable and articulable suspicion to stop, the "slinking down" still couldhave been an innocent act that did not justify a stop. Mills, 115 Ill. App. 3d at 815.

Lastly, even when we consider all of these facts collectively, we cannot conclude that OfficerPate possessed a reasonable and articulable suspicion that defendant was involved in a crime. SeeDavis, 352 Ill. App. 3d at 582. In order to justify a stop, the situation the officer faces must be sofar from the ordinary that any competent officer in a similar position would act with haste. Croft, 346Ill. App. 3d at 675. The facts available to Officer Pate fall short of this standard. Thus, we hold thatOfficer Pate did not have a reasonable and articulable suspicion that defendant was involved in criminal activity. Because we determine that Officer Pate lacked a proper basis to stop defendant,we need not consider whether the officer exceeded the scope of a proper Terry stop. Croft, 346 Ill.App. 3d at 676.

As a final matter, we consider whether the trial court erred when it collaterally estopped theState from contesting the motion to suppress in the controlled substances case. Before addressingthis issue, we note that we have jurisdiction to consider it because the substantive effect of the orderapplying collateral estoppel was to suppress evidence in the controlled substances case. See 188 Ill.2d R. 604(a)(1).

We now address the merits. Collateral estoppel bars the trial of an issue that has been fairlyand completely resolved in a prior proceeding. People v. Tenner, 206 Ill. 2d 381, 396 (2002). Thedoctrine applies when: (1) the issue decided in the first case was identical to the issue presented inthe second case; (2) a final judgment on the merits was rendered in the first case; and (3) the partysought to be estopped was a party to the first case or in privity with a party to the first case. Peoplev. One 1984 Pontiac Parisienne Sedan, 323 Ill. App. 3d 717, 722 (2001). A judgment is final forpurposes of applying collateral estoppel when the potential for appeal is exhausted. People v. Powell,349 Ill. App. 3d 906, 909 (2004). We review de novo the application of collateral estoppel. Powell,349 Ill. App. 3d at 909.

Here, when the trial court collaterally estopped the State from contesting the suppressionmotion in the controlled substances case, the DUI suppression order was on appeal to this court and,thus, was not final. Because the DUI suppression order was not final, the trial court erred when itruled that the judgment effected a collateral estoppel in the controlled substances case. Accordingly,we must vacate that order.

With that said, we would be remiss if we did not comment on the sequence of events in thiscase. Specifically, on August 26, 2002, defendant moved to quash his arrest and suppress theevidence seized in the DUI case. Three months later, on November 19, 2002, defendant was indictedfor unlawful possession of a controlled substance. On November 20, 2002, the trial court granteddefendant's petition to rescind the statutory summary suspension of his driving privileges, thetestimony on which served as the evidence in the DUI suppression hearing.

What is troublesome to this court is that on July 30, 2003, eight months after defendant wasindicted for unlawful possession of a controlled substance, the hearing on the motion to suppress inthe DUI case was held, and the trial court granted that motion one month later on August 26, 2003. At no point prior to August 26, 2003, did defendant move to join the DUI and controlled substancescases, even though the basis to quash the arrest and suppress the evidence seized was the same inboth cases. The underlying result of such action was that defendant could test the viability of hismotion to suppress in the DUI case, and, if unsuccessful, he could present more evidence at thecontrolled substances suppression hearing in the hopes of obtaining a favorable judgment. The DUIsuppression hearing thus served as a dress rehearsal for the controlled substances suppression hearing.We do not determine that such a procedure is improper, but we do determine that it was not aneconomical use of resources. In the future, the parties, and the court if apprised, should seek to avoidduplication of matters that could be resolved simultaneously.

In conclusion, we hold that Officer Pate effected an invalid Terry stop, as he seized defendantwithout a reasonable and articulable suspicion that defendant was involved in a crime. Thus, the trialcourt properly granted the motion to suppress in the DUI case. However, we also hold that the trialcourt erred when it barred the State from contesting the motion to suppress in the controlledsubstances case based on the decision rendered in the DUI case, because the DUI suppression orderwas not final.

For these reasons, the judgment of the circuit court of Kane County in appeal No. 2--03--1303 is affirmed. In appeal No. 2--04--0184, the judgment of the circuit court of Kane County isvacated.

No. 2--03--1303, Affirmed.

No. 2--04--0184, Vacated.

McLAREN, J., concurs.

PRESIDING JUSTICE O'MALLEY, dissenting:

I agree with the majority's analysis of whether and when a seizure may be justified as anexercise of the community caretaking function of police.

I dissent, however, from the majority's conclusion that defendant was seized as Officer Pateapproached defendant's vehicle on foot, that is, before Officer Pate saw the brown bottle on the floorof defendant's car, and, of course, before Officer Pate spoke with defendant and noticed signs ofintoxication. The timing of the seizure is crucial, for if, as I believe, the seizure occurred after OfficerPate made these observations, then he would have had more than sufficient warrant for his action (apoint that the majority does not and could not dispute).

I must dissent because the majority's conclusion that defendant was seized as Officer Pateapproached the car on foot is flatly at odds with clearly controlling precedent from both the UnitedStates and Illinois Supreme Courts, and because the majority's analysis, viz. whether the officer'sactions were of the kind that an ordinary citizen would take, is both odd and unprecedented in ourstoried fourth amendment jurisprudence. Consequently, this decision and the way in which it wasarrived 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 policeofficer's actions were of a kind that an ordinary citizen would take, then the consequences areenormous. Ordinary citizens routinely request the police to check something or someone outprecisely because the citizen is scared to do it, i.e., he thinks it's the kind of action that police, notordinary citizens, should take. Frequently, these requests do not contain information sufficient toform 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 thesituation. When the citizen responds that he thinks it's the kind of situation that police, not ordinarycitizens, should check out, is the officer to respond that that is precisely why he is not going to takeany 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, 1879n.16 (1968). The majority scrutinizes Officer Pate's actions to determine whether they were of thekind that ordinary citizens, not police officers, would take. See slip op. at 12-13. Finding thatordinary citizens neither park in the middle of the street nor shine flashlights into or around people'scars nor approach those cars on foot from the rear, the majority concludes that these actions werea 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 fourthamendment. I take it that the lack of authority cited in support of the majority's perspective is a silentadmission of novelty. Even in its response to my points, the majority still does not cite any authorityfor, and in fact ignores my criticism of, its notion that a seizure is determined by looking at whetherthe officer is acting as an officer as opposed to a private citizen. Indeed, the majority appears to havea distinctly cavalier view of precedent, writing that every case is sui generis, that precedent providesonly "some insight" into current issues, and that a "practical, realistic inquiry" is superior to "relianceon rigid, technical, black-letter rules." Slip op. at 12. I admit that any particular set of facts seldomsurvives wholesale into the next case, a reality that permits courts to justify different results in casesthat at first blush appear to be factually similar. However, our body of case law keeps its coherencein the flux of facts only by adhering to principles. Today the majority reaches its result by substitutingprinciples 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 ofan ad hoc enterprise.

First, for all the majority's avowed distaste for black-letter rules, any reader will find it difficultnot to draw such a rule from the majority's analysis, for it is continually suggested throughout theanalysis that police must act as little like police as possible, lest a seizure occur. However, underestablished search and seizure law, the touchstone is not whether the police officer is acting peculiarlyas a police officer in initiating an encounter. Terry recognized that "not all personal intercoursebetween 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-citizenencounters, Terry said:

"Street encounters between citizens and police officers are incredibly rich in diversity. Theyrange from wholly friendly exchanges of pleasantries or mutually useful information to hostileconfrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostileconfrontations are not all of a piece. Some of them begin in a friendly enough manner, onlyto 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 beindistinguishable from citizen-citizen interaction in order to fall short of a seizure. Encompassedwithin the breadth of the nonseizure encounters generally described by Terry and its countlessprogeny is a wide gamut of activity unique to police, far unlike citizen-citizen encounters. Ordinarycitizens mind their own business much more often than police do. An ordinary citizen does notnormally approach a stranger and ask him for identification, or ask him what business he has in thatlocation, or ask him to reveal what is on his person, yet these are actions that Illinois courts have helddo 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 byapproaching him as he walked along a highway at 1 a.m., asking if he was lost, and asking what wasin the bag he was carrying); People v. Jordan, 43 Ill. App. 3d 660, 661 (1976) (defendant, who wasrunning 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 beenmade upon the individual's freedom to walk away from the officer, such an encounter does notconstitute 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 aninvestigative manner, then does the majority think that this statement of the law is not valid aftertoday'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 beingcommunicated to defendant *** was far different from the 'wholly friendly exchanges of pleasantries,'referred to in Terry." Slip op. at 14, 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 "whollyfriendly exchange of pleasantries" or a seizure, then the majority has not only fundamentallymisunderstood Terry (the criterion in that case obviously is not the pleasantness of the encounter) butalso 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 asan officer during the encounter, then considerable ink was wasted. One may admire the majority'szeal for simplicity while at the same time seeing its approach as absolutely alien to the law. " 'Themere knowledge by the person questioned that the person asking the questions is a police officercannot in itself constitute a factor of threatened force because, were that so, every question put toa person under any circumstances by a self-identified police officer on duty would by that very factconstitute 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 hiswords or through his actions, the mere fact that the citizen knows that identity does not give rise toa seizure.

The majority of course emphasizes that its holding is not that "a police officer may neverapproach an individual seated in a car" (slip op. at 13), yet elsewhere the reader is informed that theofficer must approach the individual as would "a citizen simply stopping to have a conversation with"him (slip op. at 12). That is, police must strip themselves of their official trappings. The majoritycites no precedent for such a view precisely because such a view is absolutely unprecedented. If themajority'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 aproper citizen would not park in the middle of the street, which not only is illegal for a private citizento do but communicates "a sense of urgency." Slip op. at 12. Rather, an officer acting like a propercitizen would "simply [pull] up alongside" the individual's car, thereby suggesting "nothing more thana casual encounter on the street." (Emphasis added.) Slip op. at 13. Here, the majority is seriouslymisguided. 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 uponthe 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, andevery year in this country many law enforcement officers are killed in the line of duty, and thousandsmore are wounded." Terry, 392 U.S. at 23, 20 L. Ed. 2d at 907, 88 S. Ct. at 1881. "Certainly itwould be unreasonable to require that police officers take unnecessary risks in the performance oftheir duties." Terry, 392 U.S. at 23, 20 L. Ed. 2d at 907, 88 S. Ct. at 1881. As I explain more fullybelow, the effect of the majority's plea for casualness in police-citizen encounters is to force a whollyinappropriate 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 slip op. at 12), or actnot at all and leave the citizenry unprotected. I doubt the framers intended to dampen police initiativewith such a Hobson's choice.

Continuing with its unique analysis, the majority also informs us that, when approachinganother's car on foot, an officer acting like a proper citizen would not approach the driver's windowof the car from the area of the rear driver's side but rather would "simply walk[] up to the windowas an ordinary citizen typically would." Slip op. at 12-13. Third, an officer acting like a proper citizenwould not shine a flashlight into and around a person's car. Slip op. at 12-13.

I cannot see how Officer Pate would have reduced the tension in the encounter by followingthe first two of these guidelines. As for the first, where does the law permit a citizen to double-parkhis car alongside another parked car to speak to its occupants? And it seems to me that Officer Patewould have communicated an even greater sense of urgency by blocking defendant's car in its parkingspace than by parking in the middle of the street. Had Officer Pate simply double-parked besidedefendant, a reasonable person in defendant's position would have drawn the inference that OfficerPate 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 Patecreated an impression of urgency by approaching defendant's driver's window from the rear. Themajority's geometrical analysis of this encounter is lost on me.⁽¹⁾ The simple fact is that the trajectoryof 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 thecar. 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 arounda vehicle. This hardly matters, for Illinois courts have held that a police officer's shining a flashlightinto a car is not coercive. See People v. Holdman, 73 Ill. 2d 213, 220 (1978) (shining flashlight intomoving car suspected to be connected with fugitive did not amount to coercion; the officers "weresimply performing their official duty"); People v. Erby, 213 Ill. App. 3d 657, 662 (1991) (shining lightinto suspicious car parked near gas station was not a seizure; court held: "[S]hining a light into avehicle, especially a parked vehicle as is the case here, does not constitute a stop absent coercion ora threat of coercion by police officers"); cf. People v. Bunch, 207 Ill. 2d 7, 19 (2003) (show ofauthority in officer's standing "just a foot from defendant and shining his flashlight in defendant'sface," 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-letterrules (slip op. at 12), yet its approach here is neither practical nor realistic and may well have trulylethal effects. Fourth amendment jurisprudence has long justified the exclusionary rule on thesupposition that the prospect of illegally seized evidence becoming a legal nullity in court will deterpolice from effecting illegal seizures. See People v. Tisler, 103 Ill. 2d 226, 247 (1984); People v.Dowery, 62 Ill. 2d 200, 203-04 (1975). Suppose, after the issuance of this opinion, a citizen in ourjudicial district calls the Village of Hampshire police department at 2:30 a.m. and reports that anunfamiliar man in an unfamiliar vehicle is parked along the curb outside the citizen's house. Thecitizen requests that the police investigate the matter. Due to today's opinion, when the dispatchedpolice officer arrives on the citizen's street, he knows that he risks violating the fourth amendmentif he investigates the report while employing such safety measures as approaching the subject vehiclefrom the rear and shining a flashlight into the darkness within and around the vehicle. If the majorityaccepts the deterrence rationale for the exclusionary rule (as it must under current law), then it cannotissue today's ruling without expecting the officer in my hypothetical situation to avoid using thesesafety 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 needfor the offending flashlight. Thus, the deterrent effect of today's opinion may be fulfilled either in theofficer'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 asa result of today's decision is active police work at night. It is neither "realistic" nor "practical" totrammel 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 theconcrete guidance that our appellate court has been given in reviewing a trial court's disposition ofa motion to suppress. In People v. Murray, 137 Ill. 2d 382, 390 (1990), the supreme court listedseveral circumstances that may be indicative of a seizure: "(1) the threatening presence of severalofficers, (2) the display of a weapon by an officer, (3) some physical touching of the person of thecitizen, and (4) the use of language or tone of voice indicating that compliance with the officer'srequest 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 ofthe factors were present in the facts before it, Murray concluded that no seizure had occurred. Themajority apparently has a less complimentary view of the Mendenhall factors, for it acknowledgesthem only in remarking that, in Mendenhall, "the Court observed that the tone of an officer's voicemight convey to a reasonable person that he or she is not free to leave." Slip op. at 13. The majoritythen draws a forced comparison between the use of a flashlight and a peremptory tone of voice. Thisis not how precedent is to be acknowledged. In their wisdom, both the United States Supreme Courtand our supreme court have not abandoned us to the situational decision-making that the majorityoddly feels is its lot. The guidance is there if the majority would have it. None of the Mendenhallfactors are present here, and that is quite obvious.

In addition to the Mendenhall factors, there are specific principles applicable here. First, "anindividual 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 actionsto 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 questioningof a person seated in a parked vehicle does not constitute a seizure." Murray, 137 Ill. 2d at 391. Thiscase bears no relevant factual differences from Murray, where the officers approached the defendantas he was sleeping in his car, which was legally parked on a frontage road. The officers approachedthe car, knocked on the window, woke the defendant, and then asked him to step out of the car andproduce identification--actions, I hasten to add, that ordinary citizens would not take. As thedefendant complied with these requests, the officers saw a handgun on the floor of the car andarrested the defendant. Finding none of the Mendenhall factors present, the supreme court held thatthe 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 inMurray. Officer Pate approached defendant, requested identification, and questioned him about hispresence on the street. If at any time during this conversation defendant believed he was not free toleave, he had no more reason for this belief than did the defendant in Murray, who was awakened outof a sleep by police officers rapping on his window and requesting him not just to produceidentification but to step out of the car as well. Of course, here the majority holds that a seizureoccurred even before Officer Pate uttered a word to defendant.

The majority finds it "most notable" that I have not said whether a reasonable person indefendant's position would have felt free to leave under the circumstances. Slip op. at 14. 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 thedefendant's position in Murray would feel free to leave? Obviously not, but an appellate court isbound 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 toorestrictively 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 implicitlyand 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 ofthe encounter"). If this case is heard by our supreme court, I feel reversal is once again inevitable.

1.