Search of Car Violates Fourth Amendment

Anyone who has practiced criminal law, and I’m suspecting many ordinary citizens as well, know the all-to-familiar story where a police officer conducts a routine traffic stop for a relatively minor violation and somehow it turns into a full-blown search of the car.  How does this happen?  Why does failure to use a turn signal at least 100 feet from the turn, or having a broken taillight, eventually result in a felony arrest.  Police normally effectuate the traffic stop with the intent being that he or she ultimately wants to search the car, and they take particular steps to reach that goal.  One of the most common ways the officer gets to search is by obtaining the consent of the driver.  In one of the most confounding questions ever pondered by man, the precise reason that people voluntarily allow the police to search a car in which they have drugs hidden is beyond me.  Nonetheless, it happens all the time.  So, let’s address this issue.

Police have the right to make a traffic stop whenever they witness a traffic violation.  The detention of the driver is a seizure under the Fourth Amendment and therefore is subject to the “reasonableness” requirements.  I.e., the stop can only last as long as is reasonably necessary and must be performed in a reasonable manner.  Once the reason for the traffic stop has ceased to exist (the officer issued the citation), there is no further grounds under which the driver could continue to be detained.  Therefore, the police will have to then show either probable cause to believe that a crime is or has been committed, or at least reasonable suspicion that “crime is afoot” to continue the seizure of the driver in order to investigate.  Or, the police can simply make a request that the driver allow the officer to rummage through their personal property.  Consent is an exception to the Fourth Amendment and the police do not have to have any independent justification.  If you consent, the police are allowed to search, period.

However, what happens when the consent is given only AFTER the police no longer has the right to seize driver, because the traffic citation has been issued and the traffic stop is over? The Second District Court of Appeals correctly ruled that the consent is not valid in State v. White, 2013 Ohio 3027.

The defendant in White was pulled over for a broken taillight after the officer earlier witnessed some unusual behavior on the part of the driver.  A park ranger noticed the defendant sitting in her car in the parking lot of a local metro park.  The officer observed the defendant hunched over the console of the car, and upon her noticing the officer driving by, she popped-up and blurted out a “common epithet.” The decision doesn’t say what epithet she shouted or how the officer possibly heard it from inside his cruiser, but I digress.  The officer then watched as the driver exited the vehicle and walked into the woods, a common endeavor by those that frequent such places.  The officer was nonetheless curious and continued monitoring her behavior.  A short time later she returned to her car and pulled out of the park.  This is when the officer observed that she had a broken taillight and decided it was his chance to pounce.

The officer stopped the vehicle and requested her license and registration.  The officer also called in back-up, who stood on the opposite side of the car, essentially “flanking” the car.  When the information came back that she was valid and had no outstanding warrants, the officer issued her a verbal warning for the taillight – as it was never the reason for the stop to begin with, he wanted to search her and the car.  The officer testified at the suppression hearing that she seemed “nervous,” and her hands were shaking during the stop.  After issuing the warning, he then asked if she would answer a question.  He inquired as to whether she had anything illegal in the car and she responded, “not to my knowledge.” He then asked if he could search the car and she said yes.

The appellate panel held that because her continued seizure was illegal once the traffic stop had been completed, her consent was the product of a Fourth Amendment violation and was invalid.  Therefore, the heroine and marijuana pipe found within the car had to be suppressed. The State obviously argued that under the totality of the circumstances, a reasonable person would have felt free to leave and that she had provided valid consent to search, something people do all the time.

In one of the great myths involved in criminal law, the state loves to argue that a reasonable person would feel free to leave when being asked questions by law enforcement.  Common sense and reality belie this claim as almost no one ever feels comfortable telling an officer to “just move along, nothing to see here, sir.”  And, if someone does ignore an officer, they are usually charged with obstruction of justice or some such nonsense. However, when trial and appellate courts agree that a person “felt free to leave” and could have unilaterally decided the end the encounter with the officer, then there is no seizure under the Fourth Amendment, and no justification is needed to continue to engage the citizen.

In upholding the trial court’s decision to suppress the evidence, the appellate panel cited State v. Ferrante, quoting that “[a] police officer’s request for consent to search a vehicle stopped for a traffic violation is valid if it is made, and voluntary consent is obtained, during the period of time reasonably necessary to process the traffic citation; in other words, while the driver is lawfully detained for the traffic violation.”  If the consent is obtained only after the reason for the traffic stop has ended, as was the case here, the consent is invalid unless the government can then prove that the consent to search was not the product of the illegal seizure, but rather an “independent act of free will.” If the consent is obtained during the time it takes to issue the citation, when the officer has the right to detain the driver, the state need only show that it was voluntarily given and not because they were coerced.

In short, because the police could not point to any objective facts that gave rise to a reasonable suspicion that crime was afoot, once the traffic violation was over, they had no further justification to detain the driver.  The continued detention of the driver was unconstitutional at that point. When the driver then consented, that consent was presumptively invalid unless the state could prove that it was not the product of the illegal seizure, but rather an act of free will.  The trial court found that the consent was in fact the product of the illegal detention and not the driver’s free will.  It found that a reasonable person in this driver’s situation would not have felt free to leave; likely because there were two cruisers involved and the car was ‘”flanked” by the cops.  Would you have felt comfortable saying, “I know you want to ask me some questions, but I’m leaving now, thanks”?  Or, would you have done as every other person does: stay at the scene until the police decide they are done with you?

Here, both the trial and appellate courts understood that this defendant could not have felt free to leave under the totality of the circumstances, and therefore, the consent was invalid.  When the officers had no independent justification to search, the evidence had to be suppressed.  The lesson in all of this is that you should not consent to a search!  Change one fact here or there and this case would have come out a very different way.  In fact, one appellate judge dissented and would have overruled the trial court’s decision to suppress the evidence.

Posted by Charles W. Morrison on August 27, 2013.

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