State Court Tells Cops Obtaining Consent Not Enough To Fix Suspicionless Vehicle Search

from the 99-Problems-all-over-again dept

Without citing the Supreme Court's Rodriguez decision, the Superior Court of Delaware has returned a ruling [PDF] that should serve as a deterrent to law enforcement fishing expeditions. (h/t FourthAmendment.com)

Two state courts recently held that extending an interaction beyond the objective of a traffic stop is unconstitutional, pointing out that it's not the length of the constitutional violation that's a problem, but the violation itself. There is no de minimis Fourth Amendment violation acceptable under the Rodriguez decision.

The court here could have found similarly but didn't even have to make it as far as the Supreme Court's decision to find the officers' post-traffic stop actions unconstitutional.

The defendant seeking suppression of evidence was pulled over for speeding. Everything about the stop was completely normal. As the court sees it -- according to the officers' own testimony and reports -- there was nothing else for them to do but issue a speeding citation.

Officer Hamilton stopped the defendant (John Geist) and asked for the usual documents. These were provided and the citation was written up. Six minutes after the initiation of the stop, Officer Hamilton to Geist he was free to go. Another officer showed up during the stop and asked Geist if he had any questions. Geist asked the officer what the dollar amount of the speeding fine was.

The stop's objective had been achieved and Geist had presented nothing that amounted to reasonable suspicion to justify further questioning. But Officer Hamilton proceeded with more questions, almost all of them focused on getting Geist to consent to a search of his vehicle.

At that point, the engagement of all aspects of the speeding violation had completed. Nevertheless, Officer Hamilton spontaneously asked Defendant if he had any weapons or drugs in his vehicle. Other than an unspecific “thought that he might be under the influence of alcohol,” Officer Hamilton had utterly no basis for any suspicion that Defendant was transporting anything untoward. On Defendant’s negative reply, Officer Hamilton asked Defendant if he could search the automobile. Defendant, after a fashion, consented.

Consent normally cures a lot of Fourth Amendment ills. But not in this case. Law enforcement isn't allowed to push for searches it has no articulable reasons to pursue.

Certainly, if there had existed any reasonable suspicion on the part of Officer Hamilton that any such contraband were present, a warrant to search, at least arguably, could have been obtained, and consent of the Defendant would have substituted entirely adequately. There was, however, in this case, utterly no basis for any such suspicion.

The state argued that a lack of suspicion shouldn't matter because the officer obtained consent for a search. It argued there were no coercive factors to tip the scale towards unconstitutionality. The court points out something few courts have: that the imbalance of power between law enforcement officers and members of the general public is its own form of coercion.

To say that a reasonable person, standing at the instruction of the officer outside of his vehicle, while wearing sandals, shorts and no shirt, confronting two fully uniformed and armed officers would feel no coercion effect simply flies in the face of reality. In that situation, “Mind if I look around” is not really a question. It is tantamount to the statement: “I’m going to look in your car to see if you’re telling the truth.” The coercion is the situation.

As to the state's assertion that a lack of reasonable suspicion shouldn't result in the suppression of a search for which consent was obtained, the court cites an earlier case that declared drivers aren't expected to put up with being harassed and harangued into "consensual" searches just because they've committed a moving violation.

“Travelers on our State highways should not be subjected to the harassment, embarrassment, and inconvenience of an automobile search following a routine traffic stop unless the officers has at least an articulable suspicion that the search will yield evidence of illegal activity.”

Fishing license revoked. The court never had to approach the Supreme Court's decision because it found the officers' actions wholly unreasonable given the facts of the case. Another win for drivers -- albeit one that it limited to Delaware residents and does nothing to prevent officers from using made-up laws to initiate traffic stops and all of the consensual jousting that usually comes packed with it.

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Filed Under: 4th amendment, consent, delaware, police, probable cause, search


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  • icon
    That One Guy (profile), 12 Dec 2016 @ 3:20pm

    Well, only one thing to do now...

    Make sure to always pad out the report with 'suspicious activity' as justification for any search that might occur. Sure it might be lying, but hey, it's their word against the suspect/defendant, and I'd say everyone knows which side courts will come down on in the overwhelming majority of the time in that situation.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Dec 2016 @ 3:52pm

    This is why dashcams exist

    Know your rights, enforce your rights. You can and should say no. They don't ask you if they don't need your permission.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 12 Dec 2016 @ 7:58pm

      Re: This is why dashcams exist

      I wonder if they ask "Mind if I take a look in your car?" so they can search it whether you say "yes" or "no". If you say yes, they can say they thought you meant yes, go ahead. If you say no, they can say they thought you mean no, I don't mind. So say "I do not consent to any search." When they ask why not, "because I don't have to" or "because of the rights guaranteed to me by the Constitution".

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 13 Dec 2016 @ 2:51am

    Cop: Mind if I look around?
    Citizen: Uh...
    Cop: Nothing to hide, nothing to fear, no?
    Citizen: Well, yes..
    Cop: Ok. BRING THE DOGS AND THE PROCTOLOGISTS!

    Ahem.

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 13 Dec 2016 @ 4:26am

    Informed consent.

    Maybe we need to move towards a Miranda-like reading of a specific phrase to initiate a consented search. "Do you wave your right to require me to obtain a search warrant in order to conduct a search of your vehicle based on {insert clearly articulable suspicion that would secure a warrant} ?" Did you read the victim his Rodriguez rights before the search?

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 13 Dec 2016 @ 7:31am

      Re: Informed consent.

      As with Miranda, it will require a Supreme Court decision, because the police won't do that unless they're forced to. Great idea though.

      reply to this | link to this | view in chronology ]

  • identicon
    peter, 13 Dec 2016 @ 5:47am

    The police should really be trained better

    It shows up a serious lack of the police training regime and failure of supervisor overview, that they do not know how basic police procedure and knowledge of lawful way to conduct a search.


    I mean, it only takes a simple lesson to teach the police how to fill out he police report with a few scatted phrases such as "he looked nervous and sweating", "his eyes looked dilated", "his speech sounded slurred" etc.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2016 @ 6:00am

      Re: The police should really be trained better

      "The police should really be trained better"

      No... the police should really be PUNISHED better.

      The police should not be required to educate people on their rights. If a person is too dumb to understand or learn them, they do not deserve them.

      If an officer abuses their power then it should be punishable with their pay getting docked for small infractions or their asses in the defendants seat with a prosecutor with a hard on for jailing cops for constitutional infractions.

      reply to this | link to this | view in chronology ]

    • icon
      Groaker (profile), 13 Dec 2016 @ 11:39am

      Re: The police should really be trained better

      One of the problems is that the police are trained too well. They are taught how to use language that takes the advice of a lawyer to maintain one's rights.

      They are taught to justify murder, being placed in fear of their lives, because the victim was reading a book.

      They are taught which testilies are dependent for verification based on their word alone.

      They are taught how to commit, and get away with every crime in the book, with an incredibly small chance of getting caught.

      reply to this | link to this | view in chronology ]


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