||VEHICLE CONSENT SEARCHES – PART TWO: ELEVENTH CIRCUIT HOLDS QUESTIONS UNRELATED TO TRAFFIC STOP ASKED AFTER STOP COMPLETED WERE PART OF A CONSENSUAL ENCOUNTER

VEHICLE CONSENT SEARCHES – PART TWO: ELEVENTH CIRCUIT HOLDS QUESTIONS UNRELATED TO TRAFFIC STOP ASKED AFTER STOP COMPLETED WERE PART OF A CONSENSUAL ENCOUNTER

On January 14, 2019, the Eleventh Circuit Court of Appeals decided the United States v. Triana[i], in which the court examined whether an officer impermissibly prolonged a traffic stop when he asked questions unrelated to the stop after returning all of driver’s documents and issuing a warning citation. The relevant facts of Triana, taken directly from the case, are as follows:

On October 21, 2014, Georgia State Patrol Sergeant Dwayne Massey pulled over a truck travelling northbound on I-75 in Turner County, Georgia because it had a tinted license plate cover. A tinted cover violates Georgia law, which requires license plates to be visible and legible. See O.C.G.A. § 40-2-41 (“No license plate shall be covered with any material unless the material is colorless and transparent.”).

Triana was driving the truck. Sergeant Massey asked for his license and registration, which Triana gave. The truck was registered to Yadina Valdes Diaz, who was sitting in the passenger seat at the time of the stop. Sergeant Massey asked if Triana spoke English, to which he responded, “A little bit.” Sergeant Massey then attempted to explain the problem with the license plate cover, but Triana “didn’t really seem that he understood.” Triana was able to speak with Sergeant Massey but did so in “broken English.” Sergeant Massey told Triana to get out of the truck, and they walked to the rear of the truck, where Sergeant Massey pointed out the tinted cover.

Triana explained that the cover was legal in Florida and promised he would fix it. When Sergeant Massey asked Triana where he was going, Triana explained he was on his way to Bowling Green, Kentucky. Sergeant Massey next spoke with the passenger, Diaz, who also told Sergeant Massey they were headed for Kentucky. Diaz told Sergeant Massey she owned the truck but did not have identification with her.

Sergeant Massey directed Triana to wait in the truck. Sergeant Massey then returned to his patrol vehicle, where he logged Triana’s license and asked the dispatcher to check Triana’s criminal history report. Approximately ten minutes after initiating the stop, Sergeant Massey printed out a written warning for the tinted license plate cover. He also radioed another officer who spoke Spanish, asking for help to communicate with Triana. About one minute later, Sergeant Massey printed a consent-to-search form. Meanwhile, the dispatcher confirmed Triana had a valid driver’s license and the vehicle was registered to Diaz.

Shortly thereafter, Sergeant Massey got out of his patrol vehicle. Triana met him at the back of the truck, where Sergeant Massey handed over a copy of the written warning and returned Triana’s license and registration. Triana then asked Sergeant Massey where he could find a gas station or store to get a screwdriver to remove the tinted license plate cover. Sergeant Massey replied that the next exit had a few stores where Triana might stop and find a screwdriver. After answering Triana’s question, Sergeant Massey observed that in his experience, transporting large objects like the freezer in the back of Triana’s truck can be a sign of drug trafficking activity. Following this observation, Sergeant Massey asked Triana if he had any drugs or weapons in the car. Triana said he did not. Apparently unconvinced, Sergeant Massey asked Triana if he “had any objection” to Massey searching the truck for drugs or weapons. Triana did not understand the question at first but then responded “No, nothing.” Sergeant Massey asked Triana to sign a consent form for the search, but Triana indicated he did not understand the form. After about a minute of discussing consent, Trooper Mejia arrived on the scene. Trooper Mejia explained, but did not read, the consent form to Triana in Spanish. Triana subsequently agreed the officers could search the truck and signed the form.

Sergeant Massey searched the truck with the assistance of a third officer on the scene. He found a red duffle bag in the back seat. Inside the bag was a pair of rolled up socks that contained twenty Walmart gift cards and two card “skimmer” devices, which are used to read electronic financial information from cards. The officers arrested Triana and Diaz.

Later analysis of the gift cards revealed they were encoded with account numbers from financial institutions, rather than Walmart credit information. With the account numbers encoded on the card’s magnetic strips, the cards could be used to access bank account funds. The account numbers on the cards did not belong to either Triana or Diaz.”[ii]

Triana and Diaz were charged with fraud and aggravated identity fraud under federal law.  Triana filed a motion to suppress the evidence and argued that (1) the trooper stopped him without sufficient reasonable suspicion and (2) unlawfully prolonged the traffic stop in violation of the Fourth Amendment.  The district court denied motion to suppress, holding the traffic stop was legal for a violation of Georgia traffic law.  Further, the district court held that the questions unrelated to the traffic stop and consent to search were asked after the stop had ended and Triana and the trooper were engaged in consensual encounter.  A jury convicted Triana and Diaz.  They subsequently appealed the denial of the motion to suppress to the Eleventh Circuit Court of Appeals.

On appeal, Triana argued (1) that the trooper unlawfully prolonged the traffic stop in violation of the Fourth Amendment, and (2) that his consent was not free and voluntary.  As such, he argued that his motion to suppress should have been granted.

Issue One: Whether the trooper unlawfully prolonged the traffic stop when he asked questions unrelated to the traffic stop after he returned the driver’s license and documents?

The court first noted the legal principles that apply to this issue.  The court stated

The Supreme Court has made clear that officers violate the Fourth Amendment when they prolong a traffic stop ” ‘beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket.” Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609, 1614-15 (2015) (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005)). This Court, however, has recognized two limited exceptions to this rule: first, when officers have an “objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring”; and second, if the facts indicate that “the initial detention has become a consensual encounter.” United States v. Ramirez, 476 F.3d 1231, 1237 (11th Cir. 2007) (quotation marks omitted).[iii] [emphasis added]

Thus, an officer violates the Fourth Amendment when he prolongs a traffic stop beyond the time reasonably required to complete the mission of the stop.  However, the court also noted that there are two exceptions to this rule.

The first exception occurs when the officer has reasonable suspicion that some other criminal activity has occurred or is occurring.  When this the case, the officer can lawfully investigate that other criminal activity, even if it is unrelated to the original reason for the traffic stop.  The second exception occurs when the officer completes the traffic stop, returns the driver’s license and paperwork, and ends the stop, such that the traffic stop has become a consensual encounter.  As a review, according to the Supreme Court in Florida v. Bostic,[iv]

[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.[v]

Therefore, if a reasonable person would have felt free to terminate the encounter, the encounter is a “consensual encounter,” rather than a seizure or detention.

The court of appeals then examined whether Sergeant Massey was engaged in the traffic stop (a seizure) or a consensual encounter when he asked Triana questions unrelated to the traffic stop (about drugs and guns) and asked for consent to search the vehicle.  First, the court observed that the dashcam video showed that Triana had received all of his documents and a warning citation prior to being asked about drugs, guns and consent to search.  In fact, the court noted that after he received all of his documents, Triana asked Sergeant Massey for directions to the nearest store so he could get tools to remove the license plate cover.  The court of appeals stated that this “strongly suggests reasonable person would have felt free to leave.”[vi]  Sergeant Massey provided Triana with directions to the closest store and then asked whether Triana would mind if he asked him a question.  When Triana indicated that he did not mind, Sergeant Massey then asked whether Triana had an illegal drugs, guns or cash in the truck.  He also asked if Triana would mind if he searched the vehicle.  Triana seemed to not fully understand the question.  After about a minute of trying to explain, Trooper Mejia, who spoke Spanish, arrived and explained the consent to search form to Triana.  At this time Triana consented to a search.

The court of appeals then stated

[T]here is no bright-line litmus test for whether a traffic stop is a seizure or is a consensual encounter. But where, as here, the record evidence indicates that the police officers were not behaving in a coercive manner, the exchange was “cooperative in nature,” and Triana “had everything he reasonably required to proceed on his journey,” we conclude that a reasonable person “would have felt free to terminate the encounter” and decline Sergeant Massey’s request to search the truck. Id. The conversation between Triana and Sergeant Massey, as well as the questions and search that followed, were therefore part of an ongoing, consensual encounter and did not prolong the original traffic stop.[vii] [emphasis added] [internal citations omitted]

Thus, the court of appeals held that the district court did not err, based on the evidence discussed above, in concluding that the encounter was consensual because “a reasonable person would have felt free to terminate the encounter” and refuse to consent to a search of the truck.

Therefore, the stop was not unlawfully prolonged by the trooper’s questions about drugs and guns because the stop had ended and the trooper and Triana were engaged in a consensual encounter.

Issue Two:  Whether Triana’s consent to search the vehicle was given freely and voluntarily?

The court also examined whether the district court erred in concluding that Triana’s consent to search the vehicle was free and voluntary.  In order for consent to be valid, it must be free and voluntary.

Triana argued that his consent was not free and voluntary therefore, the evidence found during the search should be suppressed.

The court examined the facts of the case relevant to this issue.  First, the court noted that Trooper Mejia explained the consent to search form to Triana in Spanish and explained that the purpose of the search was to look for “drugs, firearms, and other contraband.”  Second, Triana replied in Spanish that he was fine with the search and officers could “go ahead and search,” as he did not have drugs, guns, and contraband in his vehicle.  Third, the court noted that the trooper did not advise Triana that he had a right to refuse, but the court also noted that this is not enough to render consent involuntary in circumstances such as this when there are several factors that show the consent was free and voluntary.  Fourth, while the trooper explained the form, he did not exhibit any behavior that could be considered coercive.

The court of appeals then held that, in light of the facts above, the district court did not err in concluding that Triana’s consent to search was free and voluntary.

As such, the court of appeals affirmed the denial of the motion to suppress.

Takeaway from this case:

This case illustrates a lawful “question and search method” in contrast to the Eleventh Circuit’s decision in the United States v. Campbell[viii], on January 8, 2019, in which the court stated “a stop is unlawfully prolonged when an officer, without reasonable suspicion, diverts from the stop’s purpose and adds time to the stop in order to investigate other crimes,” even if the questions only add 25 seconds to the stop.  Campbell is discussed in Part One of the Vehicle Consent Search series.

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Citations

[i] No. 16-16972 (11th Cir. Decided January 14, 2019 Unpublished)

[ii] Id. at 2-5

[iii] Id. at 8

[iv] 501 U.S. 419 (1991)

[v] Id. at 439

[vi] Id. at 9

[vii] Id. at 9-10

[viii] No. 16-10128 (11th Cir. January 8, 2019)

By |2019-08-26T15:30:22+00:00August 26th, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.