Opinion
ID No. 0804002890.
Submitted: September 8, 2008.
Decided: November 26, 2008.
Upon Defendant's Motion to Suppress — DENIED
Defendant was pulled over for an equipment violation. The stop was valid. While writing him up as he sat behind the wheel, the police asked Defendant for consent to search him and his car, which he gave. Now, the court must decide if the police are allowed, as a matter of law, to ask for consent to search during a simple traffic stop. If they are, the court must further decide, as a matter of fact, if Defendant's consent here was voluntary.
The threshold legal issue turns on Delaware constitutional law because federal courts allow the police to ask for consent. And, while several state courts have followed the federal cases, others have held that their state constitutions do not allow requests for consent to search during routine stops, absent reasonable suspicion supporting the request. Delaware has not specifically addressed this.
I.
On April 2, 2008, at 10:20 p.m., Defendant was stopped by Wilmington Police Officers Jones and DeBonaventura for a relatively minor, perhaps unenforceable, equipment violation: after-market tinted windows. Supporting the stop, Jones testified the tinting was so dark that he could not see whether the driver was male or female.The officers stopped their patrol car behind Defendant and each officer directed a spotlight on Defendant's vehicle, illuminating its interior. Jones approached the driver's side as DeBonaventura walked to the passenger's side. According to Defendant, he did not notice DeBonaventura because the window was up and, presumably, its tinting was too dark. Jones asked for and received Defendant's license, registration and proof of insurance.
The officers returned to the patrol car and DeBonaventura completed a computer check on Defendant's papers, which were in order. The officer then ran a criminal background check, which revealed Defendant's arrest for a weapons violation four days earlier. As DeBonaventura relayed that information to his partner, Jones watched Defendant bending down in the driver's seat. At that point, the officers decided to ask Defendant if there was anything in the car, or on his person, that they needed to know about. Accordingly, they interrupted the citation process and re-approached Defendant's vehicle. Jones talked to Defendant while DeBonaventura waited by the rear of Defendant's vehicle. At that point, Defendant was still behind the wheel and still unaware of DeBonaventura.
Jones told Defendant that Defendant's documents were valid. Jones then asked Defendant two questions: first, were there any weapons or illegal contraband in the vehicle. Defendant said "No." Next, Jones asked Defendant for consent to search Defendant and his vehicle. Defendant testified that he did not consent. He further testified that he was aware of his right to refuse, having done so during a traffic stop for a noise violation a year before . About that stop, Defendant said he had refused consent and the police let him go. Defendant did not accuse the police here of threatening him if he did not consent. To the contrary, the officers testified that had Defendant refused, they would have finished the citation and released him. That, of course, jibes with what Defendant said the police did when he was stopped in the past.
It plays no part in the decision, but it appears from available records that Defendant was, in fact, stopped on January 27, 2008 for a noise violation. The officer apparently handcuffed and detained Defendant, then issued a summons and released him. The records do not indicate a request to search. Based on the record here, however, the court takes Defendant's word that he thought he would be released if he refused consent.
The court is inclined to accept the officers' testimony, in part, due to the fact that the officers justified their search entirely on consent. There were other, less questionable avenues by which the officers could have justified what they did. Officer Jones's candid testimony that he was not frightened by Defendant's movement nor that he thought Defendant had a weapon, contributes to the finding that consent was requested and granted. Taking all the testimony into account, the court finds, as he sat behind the wheel waiting for a ticket, Defendant consented to the subsequent search.
Officer Jones immediately followed his first request for consent with another and, again, Defendant consented. Jones then asked Defendant to step out of the car and walk to the back. As Defendant approached the rear, consent was requested and received a third time. At that point, Jones began a pat-down search. As he neared Defendant's right ankle, Defendant broke away from the officer and ran. A chase ensued, leading to Defendant's arrest and, ultimately, seizure of cocaine. (It is agreed that the drugs' admissibility turns on whether the pat-down was legitimate.)
In summary, Defendant was stopped for a simple equipment violation. After checking Defendant's papers, but before returning them, the police asked for consent to search. At the moment he was asked for consent, Defendant was not free to leave because the police had his documents and were still writing him up. Significantly, Defendant had not been ordered by the police to step out of his vehicle, much less stand for a pat-down search or to wait in the police cruiser. When asked for consent, Defendant was seated behind the wheel of his own car, with the keys in the ignition, waiting for his traffic ticket. Only a few minutes passed between the stop and the request for consent. At most, the detention was prolonged by the few minutes it took for the record check and a further moment to ask for consent. That request was not accompanied by overt threat or intimidation.
II.
Defendant was charged with Second Degree Assault, Resisting Arrest, and several drug offenses. Through counsel, he filed a motion to suppress the drugs on the grounds that the stop was invalid and the police exceeded its scope when Officer Jones asked for Defendant's consent to search.
A suppression hearing was held on August 29, 2008, at which the issue was reduced to whether an officer may request consent for a search during a valid traffic stop, without reasonable suspicion of criminal activity. The court preliminarily denied the motion, but gave Defendant an opportunity to submit more authority. Defendant filed a supplemental brief on September 8, 2008.
III.
Now, the issue presented is narrow, falling within the middle of the spectrum of traffic stop seizure cases. On one end, this case does not involve a situation where, having already violated a defendant's rights, the police obtain consent. For example, Defendant was not already handcuffed when the police asked for his consent. Nor does it involve, on the other end, the situation where an officer has completed the initial traffic stop and, after returning the driver's documentation and completing the citation or warning, asks for permission for a separate investigative detention. The former is clearly invalid, while the latter usually passes muster.Under the Fourth Amendment, a traffic stop is a seizure, subject to constitutional limitations. The traffic stop's duration and execution is limited to its inception's purpose. "The State must demonstrate that the stop and any subsequent police investigation were reasonable in the circumstances."
Delaware v. Prouse, 440 U.S. 648, 653 (1979).
Heath, 929 A.2d at 406 (citing Caldwell, 780 A.2d at 1045-46).
Id.
To determine a traffic stop's reasonableness, the court applies the standards from Terry v. Ohio, the seminal "stop and frisk" case. Under Terry, the initial stop must be justified at its inception by reasonable suspicion of criminal activity. A traffic stop detention must be temporary, lasting no longer than necessary to effectuate its initial purpose. Finally, any inquiry must be reasonably related in scope to the stop's initial justification.
392 U.S. 1 (1968).
Caldwell, 780 A.2d at 1046 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 880-81 (1975)).
Florida v. Royer, 460 U.S. 491 (1983); see also Caldwell, 780 A.2d at 1045-46.
Caldwell, 780 A.2d at 1046.
If, however, the stop is justified and the person gives valid consent, a search may be upheld regardless of the reason for the stop. As mentioned above and discussed below, there is conflict over whether consent, even after a justified stop, can be valid under circumstances like the ones here.
See infra, section C.
A. The Initial Stop Was Valid
Violation of even a minor traffic law is cause for an officer to stop a vehicle. The officer must have probable cause or reasonable suspicion that a traffic violation has occurred. Reasonable suspicion is "the officer's ability to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." An officer's underlying motivation is immaterial so long as the stop is based upon reasonable suspicion. An initial stop's validity bears directly on a subsequent consent to search.Following the suppression hearing, Defendant accepted the court's finding that the officers had reasonable suspicion to believe Defendant's windows were too dark. Window tint that prohibits an officer from seeing a vehicle's occupants is enough to suspect the tint exceeds the limits. Therefore, on Officer Jones's testimony that he could not tell the sex of the driver because of the tinting and, as Defendant impliedly agreed, the tinting was so dark it kept him from noticing a second officer's presence, the court finds that Officer Jones had reasonable suspicion to suspect the tinting exceeded the statutory limits. And, therefore, the initial stop was valid. That is the easiest part.
Trower, 931 A.2d 456, 459 (finding that "window tint which is so dark that one cannot see the occupants inside the vehicle creates reasonable suspicion that it violates" the statute); but see Coursey, 906 A.2d 845 (refusing to find reasonable suspicion because the officer "failed to understand the law").
B. The Detention Was Brief
A traffic stop may not take too long. When consent to search is involved, the Fourth Amendment inquiry is concerned with the elapsed time between the initial stop and the request to search. An officer may, during a valid stop, demand from the driver "the person's name, address, business abroad and destination." Officers are also permitted to "take such steps as [are] reasonably necessary to protect their personal safety." Officers are permitted to run computer checks to verify documents and to request criminal histories, so long as the requests do not unreasonably lengthen the detention. Questions not related to the basis for the stop and that prolong the detention, are unreasonable under the Fourth Amendment.
See Royer, 460 U.S. 491, 498; see also United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001) (finding fourteen minutes reasonable), cert. denied, 534 U.S. 830 (2001); United States v. Mendez, 476 F.3d 1077, 1079 (9th Cir. 2007) (finding eight minutes reasonable), cert. denied, 127 S.Ct. 2277 (2007).
Purcell, 236 F.3d at 1279; United States v. Hernandez, 418 F.3d 1206, 1209-10 (11th Cir. 2005) (holding that "[o]nce Defendant gave her consent, the clock re-started").
Purcell, 236 F.3d 1274, 1277 (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)).
Id. at 1279 (finding the request for a criminal background check " de minims in the context of the totality of the circumstances").
United States v. Childs, 277 F.3d 947, 952 (7th Cir. 2002), cert. denied, 537 U.S. 829 (2002).
Defendant argues that State v. Winn held that a mere request for consent unreasonably prolongs a stop. Although the facts are similar, the officers in Winn exceeded the necessary time, not just by a moment for two questions, but general additional questioning. Because Winn involved far more than a momentary suspension of the stop, Winn is not on point.
2006 WL 2052678 (Del.Super. July 3, 2006).
Id. at *1.
The officers' initial actions here were constitutionally permissible. The officers first requested Defendant's license, registration and proof of insurance. Then, they ran the permitted computer checks to determine the documents' validity. They also ran a proper criminal background check to determine whether Defendant had any outstanding warrants and posed a threat to their safety. Only the officers' two questions about weapons or contraband and consent are at issue.
Neither the officers nor Defendant specified how long it took the police to check Defendant's papers, run his record and ask the consent-related questions. Nevertheless, it seems that the whole process probably took no more than a few minutes. The time between the stop and the request for consent was brief and reasonable. Therefore, the detention leading up to the request for consent did not violate the Fourth Amendment. That is also easy.
C. The Stop's Scope was Limited Yet There was No Basis for a Pat-down
Having determined that the stop was justified and its duration was reasonable, the court turns to whether the officers' actions during the stop were reasonably related in scope to the stop's initial purpose. Reasonableness is the Fourth Amendment's touchstone: a traffic stop must be reasonable in scope. Bright-line rules have been rejected to emphasize the "fact-specific nature of the reasonableness inquiry." An investigation beyond that necessary to complete a traffic stop is considered outside the scope and a second detention. For an officer to investigate beyond what is related to the stop's initial purpose, the officer must have reasonable suspicion based on independent facts, or consent.
Robinette v. Ohio, 519 U.S. 33, 39 (1996).
Id.
Caldwell, 780 A.2d at 1047.
Id.
For example, if the only reason to stop a motorist is for a traffic ticket, the police are not entitled to rummage through the motorist's personal effects. That is so even if it only adds a few moments to the detention. To broaden the stop's scope, the police must have more to go on than the traffic violation. That is not to say the police always need probable cause. For example, to conduct a pat-down the police simply need a reasonable suspicion that the motorist may be armed.
Terry, 392 U.S. at 27.
Here, the court assumes without deciding that after the police saw Defendant's movement and they learned about Defendant's recent arrest for a weapons offense, they at least were allowed to ask Defendant if he had a weapon or "anything they had to be concerned about." The fact that the police did not fear for their safety does not mean they were not entitled to ask. In any event, the police obtained no evidence through that question. No harm, no foul.
The court further assumes that based on the simple reason the police stopped Defendant, and taking everything that happened up to the point when the police asked for consent to search, the police were not justified in broadening the detention to include forcing Defendant to step out of his car and stand for a pat-down. As presented above, the officers might have justified the pat-down under Terry. The State, however, did not argue that regardless of the officers' subjective feelings, Defendant's history and movement legally justified ordering him out of the car for a Terry pat-down. That argument was waived.
See United States v. Focareta, 283 F.App'x. 78, 83-84 (3rd Cir. 2008) (holding a Terry stop and frisk is examined on an objective reasonableness standard gleaned from the totality of the circumstances. Therefore, an officer's subjective belief that a suspect is not armed, or does not create a concern for safety, becomes part of the totality of circumstances under review).
Bloomingdale v. State, 842 A.2d 1212 (Del. 2004) (a determination of waiver is an exercise of court discretion); State v. LeGrande, 2008 WL 4817058 (Del.Super. Oct. 20, 2008).
That means the only way the search here can be justified is by consent. And, that tees-up the legal question: whether the police are allowed to ask a stopped motorist for consent to search when there is no independent basis for the search.
D. Under Federal Law the Police May Ask a Stopped Motorist for Consent
At first, courts struggled over whether unrelated questioning, without reasonable suspicion, unconstitutionally exceeded a stop's scope. Different approaches emerged, including the idea that asking for consent was harmless, but in order for consent to be voluntary, the police had to inform the motorist of the right to refuse consent, the so-called "first-ask-then-tell" rule. The Eleventh Circuit held that "[q]uestions which do not extend the duration of the initial seizure do not extend the scope of an otherwise constitutional stop." In Robinette, the United States Supreme Court rejected the "first-tell-then-ask" rule, impliedly holding that consent during a traffic stop was permissible, though the Court actually relied on other grounds. Eventually, Muehler v. Mena answered the question in a non-traffic stop context, holding that reasonable suspicion is unnecessary for "mere police questioning" that does not prolong a valid detention.
Purcell, 236 F.3d at 1280.
Robinette, 519 U.S. 39 (holding that Ohio's per se rule, that an officer must inform the driver that they are "free to go" prior to consent, was unnecessary and inadvisable under the Fourth Amendment).
544 U.S. 93, 101 (2005).
Following Muehler, or affirmed by it, seven circuit courts have held that its reasoning applies equally to traffic stops and, therefore, a request for consent to search does not unreasonably extend the scope of the initial stop. Currently, no federal circuit prohibits the police from asking for consent during a traffic stop. Thus, under the United States Constitution, the police here were entitled to ask for consent.
E.g., United States v. Long, 532 F.3d 791 (8th Cir. 2008); Mendez, 467 F.3d 1077 (9th Cir. 2007) (overruling prior circuit holdings in light of Muehler); Childs, 277 F.3d 947 (7th Cir. 2002) (holding "[q]uestions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention"); United States v. Chhien, 266 F.3d 1 (1st Cir. 2001), cert. denied, 534 U.S. 830 (2001); United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993); but see United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006) (the circuit follows a "bright-line rule that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to [him]").
E. Delaware Accepts Federal Law Here
So far, at least six state courts have followed the circuit courts, while five others have held that questioning unrelated to the purpose of a stop violates their state constitutions. The archetypal reasons for disallowing requests for consent are presented in State v. Carty, affirming an intermediate appellate court's declaration:
E.g., Salmeron v. State, 632 S.E.2d 645 (Ga. 2006); State v. Thompson, 166 P.3d 1015 (Kan. 2007) (request for consent allowed, but may not be valid under the totality of the circumstances); State v. Jones, 610 S.E.2d 846 (S.C.Ct.App. 2005); State v. Akuba, 686 N.W.2d 406 (S.D. 2004); Magna v. State, 177 S.W.3d 670 (Tex.Ct.App. 2005); Ellis v. Commonwealth, 662 S.E.2d 640 (Va.Ct.App. 2008).
E.g., Brown v. State, 182 P.3d 624 (Alaska Ct.App. 2008) (rejecting the precedent that so long as an officer's "questions do not extend the expected temporal duration of a traffic stop, the legal nature of the stop remains unaltered" because guilty and innocent people are likely to accede a request for consent); State v. Fort, 660 N.W.2d 415 (Minn. 2003) (holding that "any expansion of the scope or duration of a traffic stop must be justified by a reasonable articulable suspicion of other criminal activity); State v. McKinnon-Andrews, 846 A.2d 1198 (N.H. 2004) (when a question is unrelated to the purpose of the stop, it must be based on reasonable suspicion. If not, for the questioning to be valid, the court must determine that the question did not prolong the detention nor fundamentally alter the stop's purpose); State v. Carty, 790 A.2d 903 (N.J. 2002) (holding that a "suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop"); State v. McClendon, 517 S.E.2d 128 (N.C. 1999) ("[i]n order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion . . . that criminal activity is afoot.").
It is our view that travelers on our State highways should not be subject to the harassment, embarrassment[,] and inconvenience of an automobile search following a routine traffic stop unless the officer has at least an articulable suspicion that the search will yield evidence of illegal activity.State v. Carty further holds:
Carty, 790 A.2d at 912.
The requirement of reasonable articulable suspicion is derived from [New Jersey's] Constitution and serves to validate the continued detention associated with the search. It also serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop.State v. Carty seemingly turns on two, broad concerns. First, requests for consent are "standardless.," giving rise to searches based on" inarticulate hunches," or worse. Second, roadside consent given to a uniformed police officer is not voluntary "because people feel compelled to consent for various reasons." Accordingly, State v. Carty holds as a matter of state law that any consent to search associated with only a traffic stop is invalid. That is a bright line.
Id.
Id. at 909 (quoting Terry, 392 U.S. at 22).
Id. at 910-911 (relying on David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 Geo. Wash. L.Rev. 556 (1998); Ian D. Midgley, Comment, Just One Question Before We Get to Ohio v. Robinette: "Are You Carrying Any Contraband . . . Weapons, Drugs, Constitutional Protections . . . Anything Like That?", 48 Case W. Res. L.Rev. 173 (1997) (quoting 4 Wayne R. LaFave, Search and Seizure § 10.8(d) at 696 (3d ed. 1996)).
Delaware has held that in certain instances, the Delaware Constitution's search and seizure clause guarantees broader protections than the United States Constitution's Fourth Amendment. Jones v. State sets out the logical, deductive process for deciding whether the search and seizure language in the Delaware Constitution means the same thing as the similar language in the United States Constitution. The deductive process provided in Jones v. State involves seven, enumerated factors that inform the decision whether "recourse" to the state constitution is "justified." Jones v. State concludes, based on the clause's wording and history, Delaware's prohibition on unreasonable seizures is broader the Fourth Amendment's prohibition. That leaves room to adopt the State v. Carty line of cases' reasoning here. Taking the seven, Jones v. State factors into account, however, the court cannot justify seeking recourse in this instance to the state constitution.
See Jones v. State, 745 A.2d 856 (Del. 1999); Dorsey v. State, 761 A.2d 807 (Del. 2000).
Jones, 745 A2d at 864.
Id. at 864-865 (citing State v. Hunt, 450 A.2d 952, 962 (1982) (Handler, J., concurring)).
The weight of authority, nationwide, accepts the possibility that roadside consent can be valid. The majority that upholds consent searches focuses on the facts surrounding each search. Based on the record presented here, despite the historical and structural differences between the state and federal constitutions, the court cannot identify particular state interests, local concerns, state traditions or distinctive public attitudes that justify a different result from what the federal courts and the majority of state courts have reached. The legitimate concerns articulated in the State v. Carty line are best addressed case-by-case, rather than through a bright line rule.
Defendant relies on a Delaware case, Caldwell, arguing that Officer Jones's request for consent impermissibly exceeded the scope of an equipment violation stop. Caldwell, however, is not controlling for two reasons. First, Caldwelll's facts are extreme. The police ordered Caldwell out of his vehicle, handcuffed him, interrogated him, and then, after the Constitutional damage had been done, impermissibly asked for his consent to a search. Here, Defendant was never ordered out of his car. Furthermore, Caldwell is inapplicable because it holds that once the purpose of the traffic stop has been completed, an officer needs reasonable suspicion or consent to further detain the driver. Here, the stop had not ended, but was only interrupted for the moment it took to ask two questions. Although the "legitimating raison d'etre of the stop" was momentarily suspended, it certainly did not vanish.
Caldwell, 780 A.2d at 1043.
Id. at 1047 (emphasis added).
Id. at 1048.
Defendant also relies on State v. Huntley and State v. Miliany-Ojeda Both cases are distinguishable on their facts. In Miliany-Ojeda, the defendant was ordered out of his car and thoroughly questioned by the officer before the request for consent. Even more extreme, the officer in Huntley ordered Huntley out of his car, interrogated him, asked for consent, which was refused, and then called a K-9 unit to conduct a sweep. After being informed that the K-9 sweep would take between "twenty minutes to three hours," Huntley gave-in and consented to a search.
777 A.2d 249 (Del.Super. 2000).
2004 WL 343965 (Del.Super. Feb. 18, 2004).
2004 WL 343965 at *2.
Id. at 253.
F. Defendant's Consent Was Voluntary
Having decided that the police here were allowed to ask for it, the court finally must decide whether Defendant's consent was, in fact, voluntary. A search based upon valid consent is constitutionally permissible. Consent, ultimately, is a question of fact determined from the totality of the circumstances. To be valid, consent cannot be the product of police coercion or duress. The prosecution has the burden of proving that the consent was "unequivocal and specific" and "freely and intelligently given."There are several factors to consider under the "totality of the circumstances" analysis. A few factors weigh against valid consent: once they stopped Defendant, the police trained spotlights on his vehicle while the patrol car's emergency lights were on; Officer Jones was in full uniform; Defendant was clearly not free to leave when consent was requested because the officers held his documents and had not completed the citation process. The latter factor alone may be fatal to a finding of voluntariness in the Tenth Circuit.
United States v. Guerrero-Espinoza, 462 F.3d at 1309.
On balance, however, there are more factors weighing in favor of a valid consent: Defendant remained in his vehicle until after he consented; until Defendant got out of his vehicle, he was only aware of one police officer's presence; consent was requested and received three times; Defendant was aware of his right to refuse the search, and Defendant did not claim that the police intimidated him.
Taking all the circumstances into account, the court finds that Defendant's consent was freely and voluntarily given. First, Defendant was pulled over at night, therefore the lights were more for officer safety rather than an intimidation tactic. Also, due to the heavy tint on Defendant's vehicle, it was reasonable for the officers to illuminate its interior. Second, the testimony did not reveal that the officers coerced, threatened or tricked Defendant into consenting. The fact that Defendant was unaware of Officer DeBonaventura, and did not interact with him, supports that finding. Third, the coercive atmosphere was further reduced because Defendant remained in the security of his own vehicle during the first two requests for consent. Finally, although Defendant's knowledge of his right to refuse is not dispositive, it balances out the fact that he did not have possession of his documents. Defendant, by his admission, was not new to traffic stops. It is reasonable to believe that Defendant calculated that the odds favored his giving consent and the police would not frisk him down to his ankles, rather than chance an involuntary search. That calculation is similar to the one that suspects make before they voluntarily choose to speak with the police.
In another case under different circumstances, the State might have a harder time explaining the motives of the police or dispelling the belief that the motorist was frightened or intimidated, but the request to search Defendant here was reasonable and it was conducted with voluntary consent.
IV.
For the foregoing reason s, Defendant's motion to suppress the evidence is hereby DENIED.
IT IS SO ORDERED.