E-Newsletter Edition: April 11, 2007
Always note that state law may be more restrictive on police power than the U.S. Constitution.
“Under the Robinette decision, the driver of a vehicle must be free to leave prior to an officer asking permission to search. However, is it legal for an officer to ask a driver or occupant for permission to search their person during the stop (ie, prior to giving field sobriety tests)?”
One of the questions presented to our staff this week involves the concept of consent searches of the person during vehicle stops. The question mentions the “Robinette” decision, a reference to the United States Supreme Court decision in Ohio v. Robinette. *i The question indicates that a “driver of a vehicle must be free to leave prior to an officer asking permission to search;” while there are some trainers who indicate that Robinette stands for that rule, Robinette actually concluded otherwise.
Robinette was stopped on I-70 in Ohio for speeding. After checking Robinette’s paperwork and determining that Robinette had no prior violations, the following interaction occurred: “Newsome then asked Robinette to step out of his car, turned on his mounted video camera, issued a verbal warning to Robinette, and returned his license. At this point, Newsome asked, ‘One question before you get gone: Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?’ Robinette answered “no” to these questions, after which Deputy Newsome asked if he could search the car. Robinette consented.” The search revealed illegal drugs in the vehicle and Robinette was charged. Robinette challenged the consent on the grounds that the officer should have told him he was free to leave prior to seeking consent.
The United States Supreme Court rejected Robinette’s argument. First, the Court pointed out that the stop was valid. Irrespective of the deputy’s subjective intent, the car was stopped for travelling 69 mph in a 45 mph zone, thereby establishing a lawful detention of Robinette. Further, citing an earlier decision,*ii the Court determined that the deputy was also justified in asking Robinette to step out the vehicle during the lawful traffic stop. The Court rejected any argument that Robinette had to be informed that he was free to leave. The Court concluded: “And just as it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning, so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.
The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances.”
As a matter of the United States Constitution and U.S. Supreme Court precedent the operator of a motor vehicle or other person in control of the vehicle may be asked for consent to search the vehicle or their person during the lawful detention or stop. The real question that will control the outcome is whether or not the consent was voluntary. The fact that the person is detained does not create a coercive situation such that consent is automatically involuntary. In fact, one of the foundation cases on consent searches, Schneckloth v. Bustamonte, *iii upheld the search of a vehicle where the officer sought consent during the stop for a motor vehicle violation. It was the Bustamonte case that concluded that officers need not tell a consenting party that they have the right to refuse consent in seeking permission to conduct a search.
An officer who is seeking consent should choose words that do not relay to the subject that they have no choice and must comply with the officer’s request. The officer may also choose to tell a person that they have the right to refuse (although not required to do so); the officer may also choose to get the consent in writing (although not required to do so). With the proliferation of mobile video recorders, documenting the voluntary nature of consent has become much simpler. Note that the Court, in the Robinette decision concluded that Robinette was lawfully detained when consent was obtained. Additionally, the Court made note of the fact that the officer asked for and received consent after placing Robinette in front of the mobile video recorder.
Voluntariness is based upon a totality of circumstances—look to your words and conduct to determine if your actions would lead the reasonable innocent person to believe that they have no choice but to comply—if the answer is yes, then the consent is involuntary—If the answer is no-you’re good to go!
*i Ohio v. Robinette, 519 U.S. 33 (1996).
*ii Pennsylvania v. Mimms, 434 U.S. 106 (1977); see also Maryland v. Wilson, 519 U.S. 408 (1997) (Mimms: Officers have authority to order the driver of any lawfully stopped vehicle out of the car for the duration of the stop. Wilson: Officers have authority to order any and all occupants of a vehicle out the car during a lawful traffic stop.)
*iii Schneckloth v. Bustamonte, 412 U.S. 218 (1973).