Question Title: Permission
to search during stop & Robinette decision
E-Newsletter Edition: April 11, 2007
Always note that state law may be
more restrictive on police power than the U.S. Constitution.
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
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
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
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
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
The Fourth Amendment test for a valid
consent to search is that the consent be voluntary, and voluntariness
is a question of fact
be determined from all the circumstances.”
a matter of the United States Constitution and U.S. Supreme Court
precedent the operator of a motor
vehicle or other
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
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
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
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).