In yet another decision, the 5th Circuit has held that a DPS Trooper's search following a traffic stop was illegal because the consent to search came AFTER the trooper completed the stop and issued a warning.

How long do we have to wait for DPS to retrain officers and teach them to seek consent BEFORE the warrant return and issuance of a ticket or citation?

For the opinion, click here.

For a previous thread, click here.

For a nice rant on the subject, click here.


[This message was edited by John Bradley on 08-28-06 at .]
[This message was edited by John Bradley on 08-28-06 at .]

[This message was edited by John Bradley on 08-28-06 at .]

I had the very same conversation with trooper couple of months ago, and he said his sergeant told him to do it that way because if you ask for consent before the return, court may say it was coersive.

quote:

---

his sergeant told him to do it that way because if you ask for consent before the return, court may say it was coersive.

---

And I'm sure they have the case law that shows that to be the case (as opposed to our plethora of case law that says otherwise). If they do have a case on point for their policy (instead of a hypothetical "may" say it was coerced), then I'd love to see it.

I have fought this battle seemingly forever...and can't seem to win. Apparently this poor procedure is taught in the academy, as our rookies come out singing the same song....

Who is responsible for the misinformation? How can we get the problem fixed?

Just tried a motion to suppress on this very subject, a decision is under advisement.

Can the Asst General Counsel help us?

Mr. Bradley,

I read your post about the "Bad Traffic Stop, Again..." and went and read the case law. I am still very confused. In reading the case law I got the idea that to wait until the citation or warning had been issued and signed then ask for permission after the temporary detention was over with. BUT in reading back at your post i get the idea that some say to ask for it, consent to search, before the citation or warning has been issued? Which is the best way and is that what the case law is stating, WAIT till after the citation or warning has been issued then when they start to walk away ask for permission to search??? THANKS!!!!

By waiting until AFTER completing a traffic stop to ask for consent, an officer makes it much more likely that a court will find that the consent was not voluntary, simply because the officer no longer had a reasonable basis for detaining the citizen.

By asking for consent BEFORE completing a traffic stop, the officer is much more likely to obtain a voluntary consent because there is no illegal detention occurring during the request.

Of course, it helps if the officer also does the following during the traffic stop:

-has a drug dog conduct a sniff of the exterior of the vehicle

-asks questions that create a reasonable suspicion that ongoing criminal activity is afoot

-records the stop

-records the consent or obtains a written consent.

The point of the cases from federal court is that judges are skeptical of the voluntariness of a consent given after a citizen is finished with a trooper's traffic stop. The judges think that the consent is coerced by the ongoing illegal detention of the citizen by the trooper.

By making the request for consent to search while conducting the standard computer checks during the traffic stop, the trooper avoids any accusation that the detention itself was illegal.

One more question. This may sound stupid, but i have to ask because i am confused, i think.....

Several others as well as my self have had this talk about this, some say one thing and some say another. Some officers are saying that by asking for the consent AFTER the stop is over that the defendant is free and can just simply walk away from the officer, as during the stop they are not free to leave. Also another officer from a ajoining county told me that he was informed by someone from the Att. Gen. Off. that wait till the stop is over and they turn and take that first step to walk away, then ask for the consent at that point.

This one officer we have here makes many many drug cases during his traffic stops, and asks for the consent AFTER the stop as been completed. It seemed the opinion suggested that was not legal! I, myself believe you have some very good advice on this and many other topics I have seen you write about and heard you teach in classes. I am just wanting to get all this straight as to make a good point when i meet with these other officers.

So..... the 5th Circuts opinion that was just released, on Jenson and the Brigham opinion are stating that asking for permission to search AFTER the stop has been completed is not, lets say, a good practice, because they feel that it is not voluntary because the detention then becomes illegal because it is prolonged beyond the traffic stop???? Is that what they are saying in the opinion, BEFORE the stop is over or AFTER the stop is over???????????????

If I am wrong can you please explain what the Majority is saying in those opinions? I just want to have all my ducks in a row before i talk with him again. I agree with you, that to ask for the consent during the stop while the computer checks are being conducted is the best approach, if they opinions are suggesting that doing ot AFTER is prolonging the detention illegally

Sometimes my head is so hard it takes a time or two for stuff to sink in!! Ha ha ha

[This message was edited by Shaw on 09-06-06 at .]

After: not so good.

Before: better.

It's not black and white. Any time you get together a few judges, the opinions will differ. All we can do is structure the contact with a citizen so as to minimize the opportunities for judges to feel uncomfortable about the questioning.

If an officer is conducting a legitimate traffic stop, going about his business in seeking information about a citizen's identity, looking at insurance information and running a criminal history and warrant check, then he is in a much better position, while doing those things, to include a request for consent to search.

If he waits until all that legitimate business is concluded, judges get hinky, thinking that this tall, flat-hat wearing trooper is intimidating the nice citizen to stick around for a coerced consent to search. Personally, I don't find the circumstances all that coercive. But, as the repeated opinions of the 5th Circuit bear out, apparently, judges find the circumstances unreasonable, and that's what counts in the legal world.

So, regardless of some supervisor's opinion, this square peg doesn't seem to fit in a round hole.

I have read the postings here for several days with some interest. I don't see how this opinion can stand in the face of Ohio v. Robinette, 519 U.S. 33 (1996). And, since the 5th Circuit cannot trump the Supreme Court, is this latest opinion is likely to survive further challenge?

Thanks once again for you advice i greatly appriacte it!!!

Sammy's questions merits an answer. In the Ohio case, the SC seemingly approved exactly what Texas troopers are doing: a consent to search obtained after a traffic stop had concluded. But all is not what it seems.

The SC was only asked to decide whether a police officer, in seeking a voluntary consent, was required to issue a Miranda-like warning that informed the driver that he was free to deny consent and leave or free to consent and stay. The SC declined to adopt a per se rule requiring such a warning. And then the SC merely remanded the case for the Ohio SC to re-examine the case.

Guess what? The Ohio SC again reversed the case, holding that the consent, under the totality of the circumstances test was not voluntary because the defendant didn't think he was free to leave and turn down a consent. And that, really, is all the 5th Circuit has done in their cases.

Here is the Ohio case on remand from the SC, edited for readability:

THE STATE OF OHIO, APPELLANT, v. ROBINETTE, APPELLEE.
No. 94-1143
SUPREME COURT OF OHIO
80 Ohio St. 3d 234; 1997 Ohio 343; 685 N.E.2d 762; 1997 Ohio LEXIS 2970

June 11, 1997, Submitted
November 12, 1997, Decided


LUNDBERG STRATTON, J. The first issue that we must determine is whether this court's prior holding should be reaffirmed under the adequate and independent ground of the Constitution of the state of Ohio.

When the United States Supreme Court incorporated the federal Bill of [***9] Rights into the Fourteenth Amendment, the United States Constitution became the primary mechanism to safeguard an individual's rights. See Principled Interpretations of State Constitutional Law: Why Don't the "Primacy" States Practice What They Preach? (1993), 54 U.Pitt.L.Rev. 1019, 1023-1024. As a result, state [*238] court litigation of constitutional issues was based primarily upon the authority of the United States Constitution. See, e.g., Mapp v. Ohio (1961), 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (Fourth Amendment exclusionary rule applicable to states).

However, more recently, there has been a trend for state courts to rely on their own constitutions to provide broader protection for individual rights, independent of protections afforded by the United States Constitution. See Arnold v. Cleveland (1993), 67 Ohio St. 3d 35, 616 N.E.2d 163. A state may impose greater restrictions on police activity pursuant to its own state constitution than is required by federal constitutional standards. California v. Greenwood (1988), 486 U.S. 35, 43, 108 S. Ct. 1625, 1630, 100 L. Ed. 2d 30, 39; Oregon v. Hass (1975), 420 U.S. 714, 719, 95 S. Ct. 1215, [***10] 1219, 43 L. Ed. 2d 570, 575. This movement toward enforcing state constitutions independently has been called the "New Federalism." n1

n1 See, e.g., Commonwealth v. Edmunds (1991), 526 Pa. 374, 390, 586 A.2d 887, 895, fn. 6.

Despite this wave of New Federalism, where the provisions are similar and no persuasive reason for a differing interpretation is presented, this court has determined that protections afforded by Ohio's Constitution are coextensive with those provided by the United States Constitution. See, e.g., State v. Gustafson (1996), 76 Ohio St. 3d 425, 432, 668 N.E.2d 435, 441 (Double Jeopardy Clauses coextensive in their protections); Eastwood Mall, Inc. v. Slanco (1994), 68 Ohio St. 3d 221, 222-223, 626 N.E.2d 59, 60 (First Amendment Free Speech Clauses coextensive in their protections).

The language of Section 14, Article I of the Ohio Constitution and the Fourth Amendment is virtually identical. n2 Accordingly, this [**767] court has interpreted Section 14, Article I of the Ohio Constitution [***11] as affording the same protection as the Fourth Amendment. In Nicholas v. Cleveland (1932), 125 Ohio St. 474, 484, 182 N.E. 26, 30, fifth paragraph of the syllabus unrelated to the present case overruled by State v. Lindway (1936), 131 Ohio St. 166, 5 Ohio Op. 538, 2 N.E.2d 490, this court, in comparing the Fourth Amendment and Section 14, Article I of the Ohio Constitution, stated: [*239]

"While we are not bound by federal decisions upon this feature of the case, since the Bill of Rights in the Constitution of the United States is in almost the exact language of that found in our own, the reasoning of the United States court upon this aspect of the case should be very persuasive. The state courts, however, with practical unanimity, have adopted the same principle as the federal courts." See, also, State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St. 3d 82, 661 N.E.2d 728.

n2 Section 14, Article I of the Ohio Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized."

The Fourth Amendment to the United States Constitution states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Perhaps most persuasively, this court in State v. Geraldo (1981), 68 Ohio St. 2d 120, 125-126, 22 Ohio Op. 3d 366, 369-370, 429 N.E.2d 141, 145-146, stated:

"The question is whether this court should imbue the state constitutional provisions regarding search and seizure with a more stringent standard of reasonableness than is required by the cognate federal constitutional provisions. * * * We are disinclined to impose greater restrictions in the absence of explicit state constitutional guarantees protecting against invasions of privacy that clearly transcend the Fourth Amendment. * * * It is our opinion that the reach of Section 14, Article I, of the Ohio Constitution * * * is coextensive with that of the Fourth Amendment." See, also, State v. Andrews (1991), 57 Ohio St. 3d 86, 87, 565 N.E.2d 1271, 1273, fn. 1.

Thus, case law indicates that, consistent with Robinette II, we should harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to find otherwise.

We will first determine whether Robinette's stop and continued detention were justified. It is undisputed that Officer Newsome's act [***13] of stopping Robinette was justified because Robinette was speeding. We also find that Newsome's instruction for Robinette to exit the vehicle was also justified because it was a traffic stop. Pennsylvania v. Mimms (1977), 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337, fn. 6. Once Newsome administered the warning for speeding to Robinette, the reason for the stop ended.

However, Newsome continued to detain Robinette pursuant to a drug interdiction policy. The drug interdiction policy required police officers to ask persons detained during a traffic stop whether they had any contraband and then to ask to search the vehicle.

We note here that, pursuant to Whren v. United States (1996), 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89, the officers' subjective motivation for continuing the detention is irrelevant. Whren, decided after our decision in Robinette I, held that as long as the circumstances objectively justify the continued stop, the Fourth Amendment is not offended. We therefore modify paragraph one of the syllabus in Robinette I to read as follows: [*240]

"When a police officer's objective justification to continue detention [***14] of a person stopped for a traffic violation for the purpose of searching the person's vehicle is not related to the purpose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention, the continued detention to conduct a search constitutes an illegal seizure."

And so the question becomes, was Officer Newsome objectively justified, under the circumstances, in detaining Robinette after administering the verbal warning? Specifically, we must first determine whether the officer [**768] was justified in detaining Robinette to ask him whether he had any contraband.

In Florida v. Royer (1983), 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229, the Supreme Court held that the minimal intrusion of simple questioning of a person not in custody does not constitute a "seizure" requiring Fourth Amendment protection. Specifically, the court in Royer stated:

"Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions [***15] to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Id. at 497, 103 S. Ct. at 1324, 75 L. Ed. 2d at 236.

"The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." (Citations omitted.) Royer, 460 U.S. at 497-498, 103 S. Ct. at 1324, 75 L. Ed. 2d 236.

The Royer court held that where the public interest in law enforcement warrants a detention on less than probable cause, the stop must be temporary and the investigative methods must employ the least intrusive means available. Id. at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d at 238. The suppression of illegal drug trafficking is such a public interest. 460 U.S. at 498-499, 103 S. Ct. at 1324, 75 L. Ed. 2d at 237.

In a similar context, the United States Supreme Court has determined that sobriety checkpoints are constitutional if the initial intrusion and detention are minimal [***16] and the detention serves the public interest. The test was set out in Brown v. Texas (1979), 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357, wherein the court weighed "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 51, 99 S. Ct. at 2640, 61 L. Ed. 2d at 362. [*241]

In sum, Royer and Brown set out a standard whereby police officers, under certain circumstances, may briefly detain an individual without reasonably articulable facts giving rise to suspicion of criminal activity, if the detention promotes a legitimate public concern, e.g., removing drunk drivers from public roadways or reducing drug trade.

In the case at bar, we find that, pursuant to Royer and Brown, Officer Newsome was justified in briefly detaining Robinette in order to ask him whether he was carrying any illegal drugs or weapons pursuant to the drug interdiction policy, because such a policy promotes the public interest in quelling the drug trade.

The next issue for our determination is whether the continued detention of Robinette after this [***17] point was lawful.

If during the initial detention to ask the contraband question, the officer ascertained reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may then further detain and implement a more in-depth investigation of the individual. For example, at a sobriety checkpoint an officer who detects slurred speech would be justified in detaining the individual to perform a field test. State v. Eggleston (1996), 109 Ohio App. 3d 217, 671 N.E.2d 1325.

In the case at bar, Newsome did not have any reasonably articulable facts or individualized suspicion to justify Robinette's further detention in order to ask to search his car. The facts here are similar to those in Royer where police were held to be justified in briefly questioning Royer, but when they further detained him, without probable cause, to gain his consent to search his luggage, the United States Supreme Court ruled that this further detention was unlawful.

Accordingly, Newsome was not justified in detaining Robinette in order to ask for and execute an intrusive search. See Henry v. United States (1959), 361 U.S. 98, 102-104, 80 S. Ct. 168, 171-172, 4 L. Ed. 2d 134, [***18] 138-139; [**769] Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 1879-1880, 20 L. Ed. 2d 889, 906.

Even though we have determined that Newsome unlawfully detained Robinette to ask for permission to search his car, our analysis is not complete. Voluntary consent, determined under the totality of the circumstances, may validate an otherwise illegal detention and search. Davis v. United States (1946), 328 U.S. 582, 593-594, 66 S. Ct. 1256, 1261-1262, 90 L. Ed. 1453, 1460-1461.

Robinette argues that retention of Robinette I's "free to go" rule would provide predictability in determining whether an individual consented to a search. We find that Robinette's conclusion is based on an oversimplified approach to the issue of consent. In Bustamonte, the court recognized that consent searches are part of the standard investigatory techniques of law enforcement [*242] agencies. Bustamonte, 412 U.S. at 231-232, 93 S. Ct. at 2050, 36 L. Ed. 2d at 865. The court, in refusing to adopt a requirement that an officer would have to advise the individual that he or she had a right to refuse to consent to a search, stated, "It would be thoroughly impractical to impose on the normal [***19] consent search the detailed requirements of an effective warning." Bustamonte, 93 S. Ct. at 2050, 36 L. Ed. 2d at 865. In also declining to adopt a "waiver" statement that police officers could read to a person whom they wish to ask to search (i.e., a standard requiring that a consent to search is valid only if it is an intentional relinquishment of a known right), the court in Bustamonte further stated:

"It would be unrealistic to expect that in the informal, unstructured context of a consent search, a policeman, upon pain of tainting the evidence obtained, could make the detailed type of examination demanded by Johnson [v. Zerbst (1938), 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, concerning waiver of counsel in criminal case]. And, if for this reason a diluted form of 'waiver' were found acceptable, that would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation where a person forgoes a constitutional right." Bustamonte, 412 U.S. at 245, 93 S. Ct. at 2057, 36 L. Ed. 2d at 873. n3

n3 Because circumstances so vary, the United States Supreme Court in Johnson v. Zerbst (1938), 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, reasoned:

"The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id. at 464, 58 S. Ct. at 1023, 82 L. Ed. at 1466.


In sum, every search situation is unique unto itself and no set of fixed rules will be sufficient to cover every situation. n4 For that reason, Bustamonte utilized the totality-of-the-circumstances test to determine when consent is voluntary. Such a test serves both interests of allowing police to legitimately investigate under varying circumstances while protecting individuals from unreasonable searches and seizures. Bustamonte, 412 U.S. at 225, 93 S. Ct. at 2046, 36 L. Ed. 2d at 861.


n4 For example, evidence could show that a defendant had been advised by his attorney after a previous arrest that he did not have to consent to such a search and to absolutely refuse in the future. If the officer fails to use the magic words and consent is given (because the defendant did not believe the officer could find the hidden drugs), the search could be thrown out on a technicality even though the proof under the totality-of-the-circumstances test would establish that the consent was freely given.


We find Bustamonte instructive [***21] in defining when permission to search is truly consensual under the totality of the circumstances:

"When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, [*243] and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." Bustamonte, 412 U.S. at 248-249, 93 S. Ct. at 2059, 36 L. Ed. 2d at 875.

In Royer, the court further defined the elements of voluntary consent. In Royer, [**770] narcotics agents stopped the defendant at an airport solely because he fit a drug courier profile and escorted him to a separate room. Royer's luggage was retrieved from the airline without his consent. When the agents asked for consent to search his luggage, Royer did not respond verbally, but produced a key and unlocked his suitcase. A detective, [***22] without further authorization from Royer, then opened the suitcase. Marijuana was inside. In finding the detention unlawful, the United States Supreme Court held:

"It is unquestioned that without a warrant to search Royer's luggage and in the absence of probable cause and exigent circumstances, the validity of the search depended on Royer's purported consent. Neither is it disputed that where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." (Emphasis added.) Id., 460 U.S. at 497, 103 S. Ct. at 1323-1324, 75 L. Ed. 2d at 236.

In the case at bar, Officer Newsome stopped Robinette for driving sixty-nine miles per hour in a forty-five-mile-per-hour construction zone. Officer Newsome asked Robinette to step to the rear of his (Robinette's) car, which was in front of the patrol car. Newsome returned to his patrol car and turned on a video camera. Newsome gave Robinette a verbal warning and advised Robinette that he was letting him off with only a verbal warning. But without [***23] any break in the conversation and still in front of the camera, Newsome then asked Robinette, "One question before you get gone [sic]: are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?" Robinette denied having any contraband in the car. Newsome then immediately asked Robinette if he could search the car. Robinette hesitated, looked at his car, then back at the officer, then nodded his head. Newsome commenced a lengthy search of Robinette's car. During the search Newsome recovered some marijuana and a pill. Robinette was charged with drug abuse.

At the suppression hearing, Robinette provided the following testimony pertaining to the search: [*244]

"Q And did he [Newsome] indicate to you that at that time [when he returned from activating the video camera] that he was giving you a warning and that you were free to go?

"A Yes, he did.

"Q And then at that time, I think, as the tape will reflect, the officer asked you some questions about did you have any weapons of any kind, drugs, anything like that. Do you recall that question?

"A Yes.

" * * *

"Q Did you in fact feel that you were free to leave at that [***24] point?

"A I thought I was.

" * * *

"Q The officer then asked if he could search your vehicle. What went through your mind at that point in time?

"A Uhm, I was still sort of shocked and I -- I thought -- I just automatically said yes.

"Q Did -- did you feel that you could refuse the officer?

"A No."

Newsome's words did not give Robinette any indication that he was free to go, but rather implied just the opposite -- that Robinette was not free to go until he answered Newsome's additional questions. The timing of Newsome's immediate transition from giving Robinette the warning for speeding into questioning regarding contraband and the request to search is troubling. As the majority stated in Robinette I:

"The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. The undetectability of that transition may be used by police officers to coerce citizens into answering questions that they need not answer, or to allow a search of a vehicle that they are not legally obligated to [**771] allow." Robinette, 73 Ohio St. 3d at 654, 653 N.E.2d at 698. n5

n5 This transition was so seamless that even the amicus brief filed by the Ohio Attorney General missed the transition. In that brief, the Attorney General states, "Even though Robinette took the stand and admitted under oath that he felt he was 'free to leave' when the officer asked for consent to search his car, the fruits of that search were suppressed." Yet, Robinette clearly testified that he felt he was free to go while he was being questioned, but when Newsome asked to search his vehicle he no longer felt free to go.


When these factors are combined with a police officer's superior position of authority, any reasonable person would have felt compelled to submit to the [*245] officer's questioning. While Newsome's questioning was not expressly coercive, the circumstances surrounding the request to search made the questioning impliedly coercive. Even the state conceded, at an oral argument before the United States Supreme Court, that an officer has discretion to issue a ticket rather than a warning to a motorist if the motorist becomes uncooperative. See 1996 WL 587659, at 5 (Official Transcript of Oral Argument). From the totality of the circumstances, it appears that Robinette merely submitted to "a claim of lawful authority" rather than consenting as a voluntary act of free will. Under Royer, this is not sufficient to prove voluntary compliance. Royer, 460 U.S. at 497, 103 S. Ct. at 1324, 75 L. Ed. 2d at 236.

We are very mindful that police officers face the enormous and difficult task of fighting crime. Furthermore, we explicitly continue to recognize that officers may conduct checkpoint-type questioning and consensual searches, and may progress to further detention and investigation [***26] when individualized suspicion of criminal activity arises during questioning based on reasonably articulable facts. But allowing police officers to do their jobs must be balanced against an individual's right to be free from unreasonable searches. At some point, individual rights must prevail. This is just such a case.

Accordingly, we find that Section 14, Article I of the Ohio Constitution affords protections that are coextensive with those provided by the Fourth Amendment and, therefore, the Ohio Constitution does not require a police officer to inform an individual, stopped for a traffic violation, that he or she is free to go before the officer may attempt to engage in a consensual interrogation. Further, under Section 14, Article I of the Ohio Constitution, we find that the totality-of-the circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. Once an individual has been unlawfully detained by law enforcement, for his or her consent to be considered an independent act of free will, the totality of the circumstances must clearly demonstrate that a reasonable person would believe that he or she had the freedom [***27] to refuse to answer further questions and could in fact leave. n6 Bustamonte, [*246] 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Barnes (1986), 25 Ohio St. 3d 203, 208-209, 25 Ohio B. Rep. 266, 270-271, 495 N.E.2d 922, 926.


n6 If police wish to pursue a policy of searching vehicles without probable cause or reasonably articulable facts, the police should ensure that the detainee knows that he or she is free to refuse consent despite the officer's request to search or risk that any fruits of any such search might be suppressed. While we are not mandating any bright-line test or magic words, when a police officer informs a detainee that he or she does not have to answer further questions and is free to leave, that action would weigh persuasively in favor of the voluntariness of the consent to search. As noted in the amicus brief of Americans for Effective Law Enforcement filed with the United States Supreme Court:

"Such a warning may be good police practice, and indeed amicus knows that many law enforcement agencies among our constituents have routinely incorporated a warning into their Fourth Amendment consent forms that they use in the field, but is precisely that -- a practice and not a constitutional imperative. An officer who includes such a warning in his request for consent undoubtedly presents a stronger case for a finding of voluntariness in a suppression hearing, and we would not suggest that such agencies and officers do otherwise. We know, too, that instructors in many police training programs of leading universities and management institutes routinely recommend such warnings as a sound practice, likely to bolster the voluntariness of a consent to search. [We ourselves] conduct[] law enforcement training programs at the national level and many of our own speakers have made this very point."

Therefore, pursuant to the totality of the circumstances, we find that Robinette did not [**772] voluntarily consent to allow Newsome to search his automobile. As a result, the evidence collected in that search is inadmissible. The judgment of the court of appeals is affirmed.

Judgment affirmed.

[This message was edited by John Bradley on 09-07-06 at .]

I do always shepardize.

If there has been a subsequent opinion from the U.S. Supreme Court to the contrary, that would be one thing. However, the subsequent opinion of the Supreme Court of Ohio is of little value to me as a Texas prosecutor. As we all know, Texas Courts are bound to follow precedent from the U.S. Supreme Court in deciding an issue of federal constitutional law. On the other hand, the opinion of the Ohio Supreme Court isn't worth the tree that was killed to write it. Furthermore, looking at the following excerpt, it appears that the Ohio Supreme Court was careful to decide the case under the Ohio constitution in the later opinion:

Accordingly, we find that Section 14, Article I of the Ohio Constitution affords protections that are coextensive with those provided by the Fourth Amendment and, therefore, the Ohio Constitution does not require a police officer to inform an individual, stopped for a traffic violation, that he or she is free to go before the officer may attempt to engage in a consensual interrogation. Further, under Section 14, Article I of the Ohio Constitution, we find that the totality-of-the circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. Once an individual has been unlawfully detained by law enforcement, for his or her consent to be considered an independent act of free will, the totality of the circumstances must clearly demonstrate that a reasonable person would believe that he or she had the freedom to refuse to answer further questions and could in fact leave.

It is likely that this was done to prevent another hand slapping by the U.S. Supreme Court. This is a luxury that the 5th Circuit does not have.

In addition, I do not see a useful distinction between the case decided by the 5th Circuit and cases such as United States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996); United States v. Wallace, 429 F.3d 969 (10th Cir. 2005); United States v. Day, 2006 U.S. App. LEXIS 11518 (4th Cir. 2006); and United States v. Rodriguez, 2006 U.S. App. LEXIS 13060 (10th Cir. 2006).

I think that advising an officer to seek consent during the traffic stop raises as many potential problems as them doing it after the stop is over. Look at the following language from the Ohio Supreme Court's opinion:

When these factors are combined with a police officer's superior position of authority, any reasonable person would have felt compelled to submit to the officer's questioning. While Newsome's questioning was not expressly coercive, the circumstances surrounding the request to search made the questioning impliedly coercive. Even the state conceded, at an oral argument before the United States Supreme Court, that an officer has discretion to issue a ticket rather than a warning to a motorist if the motorist becomes uncooperative. See 1996 WL 587659, at 5 (Official Transcript of Oral Argument). From the totality of the circumstances, it appears that Robinette merely submitted to "a claim of lawful authority" rather than consenting as a voluntary act of free will.

Although a person "might" feel compelled to continue to submit to an officer's authority after the traffic stop, isn't the compulsion much greater during the traffic stop? Arguably, after the stop, a person can simply say "no" to the officer and drive away. They may not "feel" that they can, but at least that is legally an option. On the other hand, isn't a person much more likely to feel compelled to comply with the officer while he is holding their license and before he has written their ticket? Are they going to feel that they can drive off? More importantly, regardless of their feelings, as a matter of law, if they attempt to leave before the officer finishes his traffic stop, what is going to happen? Is there any doubt that the person will be charged with evading in a motor vehicle if that occurs? So, if the circumstances surrounding requesting consent after the traffic stop are coercive, aren't they so much more so during the stop itself? After all, during the stop, the person is actually required to submit to the officer's lawful authority. So, is it to be that all consent searches during traffic stops are invalid? I doubt it. That is why I feel the 5th Circuit is likely to be reversed.

OK, I will weigh in--on my own behalf, not as a reprsentative of my employer. After reading dozens of cases over the past few years out of the Fifth Circuit on the issue of consent to search and the timing thereof, I have decided that there is no perfect time to ask for consent, particularly when the officer lacks reasonable suspicion that the suspect has contraband in the vehicle.

For example, consider these words from United States v. Jones, s 2000 case commonly cited by the court:

"Considering our prior holdings, we can hardly say that Daniel had any more belief that he could go free when the officers never told him that he could leave but instead retained his driver's license, the warning citation, and the rental agreement and had him essentially locked up in the back of the patrol car. As for the third factor, the detention may not have been flagrant, but it is clear that the purpose of the detention was to obtain consent to search vehicles for narcotics. The officers were on a drug interdiction patrol in the Amarillo area. Additionally, the officers appeared to knowingly prolong the detention because they purposefully chose to give Jones, not Daniel, his identification documents first despite the fact that they could readily have given Daniel his documents back first, as he was in the car with the officers when the computer checks came back clean." (page refernces omitted)

The door of the patrol car had been open, however the dispatcher, who couldn't hear due to street noise, had asked the officer to close the door. The closed door plus the retained documents made the consent involuntary in the eyes of the court.

So asking for consent while still holding the suspect's ID and other documentation may be "coercive." Waiting until after the traffic stop is "complete" (documents returned, citation or warning given) may be coercive. The only way to ensure that consent is "voluntary" seems to be to tell the suspect that he has the right to refuse or that he is free to go (if after the end of the initial stop). It doesn't help that different panels of the court have come up with contradicting results. (for instance, take a look at United States v. Torres and United States v. Brigham (en banc opinion), in which the court found that asking for consent as the traffic stop was "ending" (handing the driver the citation and asking for consent nearly concurrently)was not coercive.))

I think one of the points that must be remembered about Jenson is that the Trooper didn't have reasonable suspicion in the eyes of the court. If the officer had had reasonable suspicion, the timing of the request wouldn't have been important, although the issue of voluntariness would have been.

I recently prepared a table of recent Fifth Circuit cases regarding requesting consent and holding a suspect beyond the initial traffic stop, although I haven't yet added Jenson. If anyone wants a copy, let me know.

Janette Ansolabehere

The problem with that approach (just throwing up hands and saying it is hopelessly confusing) is that it doesn't do anything to help the officer on the road trying to make the best decision on how to conduct a traffic stop.

The officer needs a bright line recommendation. And, in my opinion, the courts are much more receptive to finding a consent voluntary when it comes before the conclusion of the traffic stop. While they may not like a suspicionless request for consent, at least they don't call it the fruit of an illegal detention when evaluating its voluntariness.

Of course, an officer can probably overcome any resistance to a court accepting any consent by getting it in writing and prefacing it with the statement, "You don't have to consent and you are free to leave at any time." Of course, be prepared to get a "no, thank you" and let the person drive away.

If we do not give officers some clear recommendations, there will continue to be murky cases and suppressions. That will lead to ACLU types returning to the legislature and demanding that this stuff be put into a statute, as was done last session, resulting in a veto by Governor Perry.

The process of a legal traffic stop can't be reduced to a formula and shouldn't be codified. There are too many circumstances that can change a situation. But, we can give officers clear advice on what is the general best practice. I believe the best practice is to seek consent before the conclusion of a legal temporary detention for a traffic stop.