Facts: Traffic Stop. Officer has given the citation, driver's license and insurance card back to the Defendant. Now the officer asks for consent to search the vehicle. Officer does not otherwise have grounds for a search.

The Judge suppressed the search. Based on the idea that an officer cannot ask for consent to search after the Defendant is free to go. Defense attorney and the Judge remembers reading a case on point, yet neither one can or will give me the cite.

Does anyone know the cite?

Here are a few cases:

Bryan v. State, 11-05-00189-CR, 2007 WL 935579 *2 (Tex.App. - Eastland March 29, 2007, no pet.) (not published) ("Appellant relies on Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App.1997), to support his contention that, once the reason for the detention has been satisfied, the detention may not be used as a fishing expedition for unrelated criminal activity. Davis is distinguishable from this case because it involved a continued detention and search without consent, whereas this case involves a consensual search. After the purpose of a traffic stop has been accomplished, a police officer may ask for consent to search a vehicle; however, if consent is refused, the officer may not detain the occupants or vehicle further unless reasonable suspicion of some criminal activity exists.")

Robledo v. State, 175 S.W.3d 508, 510 (Tex.App.-Amarillo 2005, no pet.)("As previously mentioned, once Trooper Rejino issued the warning and received the report from the dispatcher, he solicited the consent to search. By then the purpose of the stop had been effectuated; yet, only seconds had passed between the time consent was requested and the purpose effectuated. This is not a situation wherein appellant was detained for minutes or hours prior to broaching the matter of consent. In other words, the effectuation of the stop and the request for consent were rather contemporaneous here. Thus, we view the situation as falling within the scope of James and Strauss and, consequently, lawful.")

Haas v. State, 172 S.W.3d 42, 52 (Tex.App.-Waco 2005, pet. ref'd)("An officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished, as long as the request is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer's request is required.").

40 TEX PRACTICE � 10.23 (Permissible duration of traffic stop: discussing e.g., Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000)).

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Originally posted by Colin McFall:
The Judge suppressed the search. Based on the idea that an officer cannot ask for consent to search after the Defendant is free to go. Defense attorney and the Judge remembers reading a case on point, yet neither one can or will give me the cite.

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Aside from the cases noted above, doesn't that logic seem backward? Why is consent more likely to be freely given while the person is lawfully detained than while the person is presumably free to go? In confession law, a custodial statement requires many more safeguards than one given while not in custody. Surely the same logic applies that a person in custody (or being detained) is more likely to feel coerced into giving consent to search than one who is not.

I have had a lot of questions about consent searches from my officers lately and so have been doing some research. The Bryan case above is a good one. 209 S.W.3d 275 is another one that says asking for consent is an "encounter" not a detention requiring reas. susp.

Beyond that, though, it seems as though there is no continuity to the logic of whether custody or not is more or less likely to be consensual. It looks as though for each particular case, the court decided whether they liked the search or not, and then said the facts supported it.

For example, one case actually said that TAKING A DEFENDANT TO A HOTEL ROOM (custody--but problematic sounding to me without knowing exactly why there was a need to take him into private) was more likely to show freely given consent than leaving him in a public place or taking him to a jail. (Because we really want our officers taking detainees inside private rooms and then testifying the searchee knew he was free to say no to the consensual search).

In other cases, they mentioned the fact that there was more than one "armed" officer present when consent was given and that pointed to non-consensual. (Aren't all police officers on duty armed?)

And then, of course, there's the SCOTUS case that says the officers do not have to tell the person they have the right to refuse the search, but at the same time all the cases I looked at that bounced the search commented on the fact that it is not required, but factors into the decision (conveniently on whichever side the court rules).

You might want to review U.S. v. Jones, 234 F3d 234 (5th Cir. 2000) which held that continued detention for a consent search is not allowed after the traffic citation is issued.

To read more on this issue, go to this previous thread.

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Originally posted by Ken Sparks:
You might want to review U.S. v. Jones, 234 F3d 234 (5th Cir. 2000) which held that continued detention for a consent search is not allowed after the traffic citation is issued.

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I usually will give them their info and citation back and then ask them if they mind if I ask them a few more questions, haven't run into it being a problem yet.

Why do you wait until you are finished to do that? Did someone suggest to you that it was a good practice? Reading all the posts and case law, is there any way we can convince you that your approach is a bad practice? Or, will you only change your practice after losing in court?

I've never had it be an issue. I am always looking to broaden my knowledge and find new and better ways to do things. I never said what I did was right, it's just the way I was taught to do it. If I were closed minded and set in my ways I wouldn't be trolling these boards.

I read as much case law as I can get my hands on and subscribe to several defense attorney's blogs to learn how to deal with issues before they happen, never can have enough knowledge in this job.

I respect your opinion and thanks for your input.

Thanks for all the help. As it turned out, the Defense Attorney filed the Motion to Suppress after the Pre-Trial Hearing. I filed a Motion to Deny the Defendant a Hearing on Motion to Suppress. The judge agreed and denied the Defense Attorney a hearing. Problem solved, for now. If the Defense Attorney brings it up at trial, at least I now have the actual law to present the judge.