Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Kathleen Warnick, Amy M. Watroba, and Yvette Loizon, Assistant State's Attorneys, of counsel), for the People.
Abishi C. Cunningham, Jr., Public Defender, of Chicago (Lindsay HugZ, Assistant Public Defender, of counsel), for appellee.
[374 Ill.Dec. 766] ¶ 1 Defendant James Lopez was arrested on October 13, 2010, and charged with aggravated driving under the influence of alcohol. He then filed a pretrial motion to quash arrest and suppress evidence, which was granted by the trial court. The State filed a motion to reconsider, which the trial court also denied. The State then filed this interlocutory appeal in order to appeal that ruling.
¶ 2 The issue before us is whether a person is seized for purposes of the fourth amendment (1) when the person is sitting in a stationary vehicle on a public street or alley, and two officers approach the vehicle on foot, with one officer walking toward the driver's side and one toward the passenger's side, and ask to view the person's driver's license and (2) when there was no evidence that the officers drew their guns, used a commanding tone of voice, or used their vehicle or bodies to block the vehicle from exiting.
¶ 3 In People v. Cosby, 231 Ill.2d 262, 278, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008), our supreme court held that the fact that two " officers approached the defendant's car, one on each side," did not transform an encounter into a seizure, where there was no indication that " either of the officers touched [defendant's] person, that they displayed their guns or that [the officers] used language or a tone of voice indicating to [defendant] that he had no choice" but to comply. Our opinion is one of the few appellate court cases to interpret and apply this holding in Cosby.
¶ 4 For the following reasons, we reverse and remand for further proceedings consistent with this opinion.
¶ 5 BACKGROUND
¶ 6 In his motion to quash arrest and suppress evidence, defendant argued that his arrest was made without an arrest warrant or probable cause, and he asked the trial court to suppress the evidence and statements obtained as a result of the arrest.
¶ 7 At the suppression hearing, Chicago police officer David Salgado testified that on October 13, 2010, he was working with his partner, Officer Esmerelda Perez. They were dressed in civilian clothes and wearing bulletproof vests and duty belts, and driving an unmarked vehicle with " M" license plates. At 1:30 a.m., they responded to an anonymous call concerning a suspicious
[374 Ill.Dec. 767] green pickup truck with two occupants parked for " quite a while" in the alley at approximately 4225 West 24th Place in Chicago. The alley is a " through" alley rather than a dead end. When the officers arrived at that location, they observed one person in a green pickup truck parked behind a garage. Half of the vehicle was on the apron of the garage, and the other half was in the alley, thereby obstructing the public way. At that time, no one was attempting to leave the garage, and Officer Salgado did not know if the garage belonged to defendant or if he had permission from the homeowner to be there. The vehicle was not moving, and there was no traffic in the alley. Officer Salgado testified that it is illegal to park in an alley, but that it is not illegal to sit in your vehicle in the alley. However, he also testified that it is illegal to block the alley, as defendant's vehicle was doing.
¶ 8 The officers approached the vehicle on foot from opposite sides and, as they did so, Officer Salgado noticed that the truck was running, and that defendant, who was in the driver's seat, turned the engine off. Officer Salgado asked defendant for his driver's license and asked defendant " what he was doing there."  Officer Salgado did not testify that the officers' guns were drawn or that he used a commanding tone of voice. Defendant was unable to produce his driver's license, but provided a state identification card. Officer Salgado testified that it is illegal to be in physical control of a vehicle without a valid driver's license. Defendant also volunteered that he had been drinking. The officer then ordered defendant out of the truck, but, as he exited, he began to fall, so the officer had him return inside.
¶ 9 Once Officer Salgado learned that defendant did not reside at this location, he gave him a citation for blocking the alley. Officer Salgado testified that he issued a total of three tickets: two moving violations, as well as a parking ticket for blocking the alley. However, he did not specify the nature of the two moving violations. Officer Salgado testified that Officer Balcar conducted field sobriety tests of defendant and that defendant underwent a Breathalyzer test at the police station. Defendant was then charged with aggravated driving under the influence.
¶ 10 The trial court granted defendant's motion to quash his arrest and suppress evidence. In doing so, the trial court noted the officer's testimony that it was not illegal to sit in a truck in an alley and that the anonymous call did not indicate the nature of the suspicious activity. The trial court concluded that the police could have ticketed the vehicle, but that " to request identification based on that information * * * violated the fourth amendment."
¶ 11 The State asked the trial court to reconsider its ruling. In its written motion, the State argued: (1) that the police [374 Ill.Dec. 768]
had probable cause to arrest since they had observed defendant committing a violation, namely, blocking the alley; (2) that the police had a reasonable suspicion to conduct a Terry stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) that " the police may approach a person seated ...