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"[B]ased on the totality of what I heard which would go to the weight and credibility of all the witnesses as well, Ifeel that under the circumstances asking the passenger of this particular vehicle based upon the situation that waspresented to the Court in the form of testimony, it was inappropriate; it was a violation of his constitutional rights tobe asked whether he consumed alcohol based upon what the officer testified to."

The State then filed a certificate of impairment and appealed pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R.604(a)(1)).

On appeal, the State argues that defendant was not entitled to Miranda warnings because he was questioned during a routinetraffic stop. Defendant contends, however, that the trial court's ruling was not based on the absence of Miranda warnings.According to defendant, the trial court suppressed his statement as the fruit of an illegal search and seizure.

We acknowledge that the basis for the trial court's holding is vague. However, we note that defendant's motion to suppresshis statement was limited to arguing that his statement was given without the safeguards guaranteed by Miranda. Therefore,we will limit our discussion to whether, under the facts of this case, defendant was entitled to Miranda warnings.

Generally, a reviewing court will reverse a trial court's denial of a motion to suppress statements only if that ruling ismanifestly erroneous. People v. Nielson, 187 Ill. 2d 271, 286 (1999). However, de novo review is appropriate if neither thefacts nor the credibility of the witnesses is at issue. Nielson, 187 Ill. 2d at 286. Here, the record indicates that the trial courtaccepted the testimony of Officer Rivkin, the only witness before it. As a result, we will conduct a de novo review.

In Miranda, the Supreme Court held that the State may not use statements made during the custodial interrogation of anindividual unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612. The Miranda court held that suspectsinterrogated while in police custody must be told that they have a right to remain silent, that anything they say may be usedagainst them in court, that they are entitled to the presence of an attorney at the time of interrogation, and that if they cannotafford an attorney, one will be appointed for them. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612. TheCourt defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been takeninto custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 16 L. Ed.2dat 706, 86 S. Ct. at 1612. However, Miranda warnings are not required where the police conduct a general on-the-sceneinvestigation as to the facts surrounding a crime or other general questioning. Miranda, 384 U.S. at 477-78, 16 L. Ed. 2d at725, 86 S. Ct. at 1629.

In determining whether a person is "in custody" for purposes of Miranda, a court first examines the circumstancessurrounding the interrogation. Thompson v. Keohane, 516 U.S. 99, 112, 133 L. Ed. 2d 383, 394, 116 S. Ct. 457, 465 (1995).The court then asks if, given those circumstances, a reasonable person would have felt he was not at liberty to terminate theinterrogation and leave. Thompson, 516 U.S. at 112, 133 L. Ed. 2d at 394, 116 S. Ct. at 465. Generally, if it is undisclosed,a police officer's subjective view that the individual under questioning is a suspect does not bear on the question of whetherthe individual is in custody for purposes of Miranda. Stansbury v. California, 511 U.S. 318, 324, 128 L. Ed. 2d 293, 299,114 S. Ct. 1526, 1529 (1994). However, an officer's beliefs on the custody issue, if conveyed by word or deed to theindividual being questioned, are relevant to the extent that they would affect how a reasonable person in the position of theindividual being questioned would gauge the breadth of his freedom of action. Stansbury, 511 U.S. at 325, 128 L. Ed. 2d at300, 116 S. Ct. at 1530.

Among the factors that a reviewing court will consider in determining whether an interrogation was custodial are (1) thelocation, time, length, mood, and mode of the interrogation; (2) the number of police officers present; (3) the presence orabsence of the accused's family or friends; (4) any indicia of formal arrest; (5) whether the accused is allowed to walk fromthe location of the interrogation unaccompanied by police; and (6) the age, intelligence, and mental makeup of the accused.People v. Rivera, 304 Ill. App. 3d 124, 128 (1999).

In this case, we conclude that defendant was "in custody" for purposes of Miranda. Officer Rivkin made a routine trafficstop of the vehicle in which defendant was traveling. He conducted an on-the-scene investigation related to the basis for thestop that resulted in the arrest of the driver of the vehicle. At that point, the two police cars were parked behind the vehiclein which defendant was an occupant. Officer Rivkin did not testify that he suspected defendant of any criminal activity.Nevertheless, he approached the passenger side of the vehicle and requested defendant's driver's license. According toOfficer Rivkin's testimony, two things became clear upon examining defendant's driver's license: (1) defendant was under21 years of age, and (2) defendant's demeanor showed signs of alcohol consumption. With this knowledge in hand, andwhile standing at the passenger-side door of the vehicle, Officer Rivkin asked defendant how much he had to drink. At thispoint, a reasonable person in defendant's position would not believe that he was free to leave.

The State argues that a contrary decision is dictated by Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct.3138 (1984). However, our holding is not inconsistent with Berkemer. In Berkemer, a police officer stopped the defendant'scar after observing that the defendant was driving erratically. The officer ordered the defendant out of the car and asked himto perform field sobriety tests. The officer then asked the defendant whether he had been using intoxicants. The defendantadmitted to consuming beer and smoking marijuana. The officer placed the defendant under arrest. The Supreme Court heldthat the roadside questioning of a motorist detained pursuant to a routine traffic stop does not rise to the level of a custodialinterrogation for purposes of Miranda.

Two factors set this case apart from Berkemer. First, the defendant in Berkemer was the driver of the detained vehicle. Inthis case, defendant was merely a passenger. Second, the defendant in Berkemer was detained because an officer observedhim driving erratically. Upon conducting an on-the-scene investigation regarding his observation, the defendant admitted toconsuming beer and smoking marijuana shortly before the stop. Applying Berkemer to this case, any roadside questioningof the driver of the vehicle would not require Miranda warnings. However, once the driver of the vehicle was taken intocustody, the basis for the initial traffic stop ceased. Officer Rivkin's decision to question the passenger of the detainedvehicle regarding matters not germane to the initial traffic stop transformed this situation into a custodial interrogationoutside the ambit of Berkemer.

The State also relies on People v. Saturday, 135 Ill. App. 3d 1052 (1985), and People v. Laspisa, 243 Ill. App. 3d 777(1993). In Saturday, a police officer observed the defendant driving on the wrong side of the road and disobeying a stopsign. The officer stopped the defendant and asked him for his driver's license. The defendant explained that his license wassuspended. The officer noticed that the defendant smelled of alcohol and his speech was slurred. He then administered fourfield sobriety tests, all of which the defendant failed. The defendant was then arrested. We affirmed the trial court's denialof the defendant's motion to suppress the results of the field sobriety tests.

In Laspisa, Officers Panico and Nicholas observed the defendant and three others, including Kalteux, sitting in a parked car.Officer Nicholas first noticed the defendant sitting with his head down toward his lap. Officer Nicholas then observed thedefendant pull his head back and tilt it up. Officer Nicholas saw Kalteux and another occupant of the car perform the samemovements. The officers followed the Cadillac until it pulled into the parking lot of a nearby bar. The defendant andKalteux exited the car. Nicholas then told Kalteux that it looked as though the four had been snorting cocaine. When asked,Kalteux admitted that they had cocaine and that he had ingested some. After the officers discovered the cocaine, theyarrested all four suspects. The trial court granted the defendant's motion to suppress the prearrest statements on the groundthat they were obtained in violation of Miranda. With one judge dissenting, we reversed. We determined that thedefendant's prearrest statements were given as the result of an on-the-scene investigation.

Saturday and Laspisa are distinguishable from the instant case. In both those cases, the defendants were stopped after policeobserved them personally performing suspicious activities. More importantly, the defendants in both Saturday and Laspisawere not placed under the same restraints of freedom as defendant in this case. For instance, the defendants were permittedto leave their cars during questioning, and the questioning related to the reason that they were originally detained. Implicitin both Saturday and Laspisa is the fact that we determined that the defendants were not "in custody" for purposes ofMiranda when they were questioned. As a result, the defendants' statements were elicited as the result of permissible, on-the-scene investigations. This case is not analogous to either Saturday or Laspisa.

In sum, because defendant was not afforded the safeguards required by Miranda, the trial court properly suppresseddefendant's statement. Therefore, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

GEIGER and RAPP, JJ., concur.