Searches of Motor Vehicles
By Jack Ryan
A major issue in law enforcement today involves the concept
of consent searches of motor vehicles. There is little consistency among
courts as to when an officer can ask a motorist for consent and the circumstances
under which such a search can take place. Some of the confusion has been
the result of state court decisions as well as legislation impacting consent
searches. Much of the change has been the result over complaints of racial
profiling. A recent study produced by the United States Bureau of Justice
Statistics indicated that in 2002, whites, Hispanics and black motorists
were stopped in equal proportion. However, Hispanics and blacks were searched
at a disproportional rate when compared to whites. In an effort to curb
this disparity, some effort has been made by the courts, legislatures,
and agencies (through policy), to restrict the use of consent searches.
As a result there is a mish-mash of rules depending on jurisdiction and
sometimes judge to judge.
A foundation case on consent searches
of motor vehicles is Schneckloth v. Bustamonte, The Bustamonte case involved
the stop of an automobile for having a headlight out and a license plate
out. The stop occurred at 2:40 in the morning and the vehicle contained
6 men. The vehicle was in control of Joseph Alcala, who stated that the
vehicle belonged to his brother. Alcala agreed to a search of the vehicle
and even assisted the officer in opening the trunk. While searching the
vehicle, the officer found stolen checks wadded up under the rear seat.
Bustamonte, a front-seat passenger was charged with the stolen checks.
The issue that went to the United States Supreme Court was whether or
not the officer should have told Alcala, that he had the right to refuse
consent. The Court concluded that officers need not tell a person that
they have the right to refuse consent. It is interesting to note, that
consent was asked without any heightened suspicion that the search would
yield evidence or contraband since the initial reason for the stop was
simply motor vehicle-equipment violations.
The difficulty with evolving automobile
consent searches is the application of varying rules among the courts.
For example, some courts have suggested that consent obtained during a
traffic stop is not valid due to the coercive atmosphere of the stop,
prompting some to suggest that officers should wait until the stop is
completed and the driver is free to leave before asking consent. The problem
with this scenario is that the officer is in essence keeping the person
beyond the scope that justified the stop to begin with. Prolonging a stop
beyond the purpose that justified the stop to begin with seems to be exactly
what the United States Supreme Court cautioned officers against in the
dog-sniff case, United States v. Caballes. In Caballes the Court asserted: “A
seizure that is justified solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission. ”
Numerous cases examine how a stop which is justified
at its inception may be prolonged beyond its scope leaving evidence which
is found after the scope has been reached, inadmissible. An example is
provided by State v. Campbell, in which detectives approached a vehicle
in a problem area and asked the driver, who was in the vehicle with his
children, if everything was okay. The driver reported that he was waiting
for the children’s mom. One of the detectives took the driver’s
license while two remained at the vehicle. The detective who took the
license conducted a warrant check which came back negative. Rather than
ending the stop, a detective began questioning Campbell about guns and
drugs. The detective, prior to returning the license asked for consent
to search the vehicle. Campbell consented and a gun was discovered, leading
to Campbell ’s arrest.
In analyzing the validity of Campbell’s consent
the court examined whether a reasonable person in Campbell’s shoes
would have felt free to leave without first having been given back their
license. The court concluded that a person who has not received their
license back would not feel free to leave and thus the continued detention
would have to be supported by reasonable suspicion. Here, the detectives
had already conducted a record check and determined that Campbell had
no warrants. Thus, even if the initial stop was justified, the stop was
prolonged beyond its scope by retaining the license and asking for consent.
The court agreed with the trial court that the consent was tainted by
an unlawful detention, thus, the gun was inadmissible as evidence.
A case from Georgia rejected a defendant’s
claim that an officer may not seek consent during the stop itself. In
Salmeron v. State, an appellate court examined a defendant’s claim
that his consent was tainted by a prolonged stop. Salmeron was pulled
over after a Henry County police officer observed him following another
car too closely. The officer observed Salmerron “mash” on
the brakes and further observed a brake light out. Upon stopping the vehicle
the officer asked Salmeron to step out of the vehicle while he wrote the
ticket. While writing, the officer engaged Salmeron in small talk in which
Salmeron indicated he was visiting friends in Atlanta. The officer detected
a strong odor of air fresheners in the vehicle and thought that Salmeron
may have been trying to mask the odor of alcohol or narcotics. Prior to
completing the citation, the officer asked Salmeron for consent to search
the vehicle. Upon searching the car, the officer found that the rear seat
was loose. The officer removed the cushion and discovered 2 kilos of cocaine.
Another kilo was located upon a further search of the vehicle.
On appeal Salmeron alleged that the officer improperly
expanded the scope of the stop. The trial court found and the appellate
court agreed that the officer did not expand the stop beyond its scope
since he asked for consent while still writing the citation. The court
concluded that asking consent during the period of time which would be
reasonable for the offense which justified the stop to begin with is valid.
An example of the confusion among the
courts can be seen when one looks at decisions from Illinois that indicate
that an officer can only ask for consent during a stop if the officer
is looking for evidence related to the offense which justified the stop
to begin with. In State v. Sloup, an appellate court examined the stop
of John Sloup based upon the suspicion that Sloup may be operating under
the influence due to the fact that he weaved within his lane; passed a
vehicle on the right without signaling; and, traveling too closely to
the vehicle he passed because that vehicle was moving too slowly. Upon
approaching the stopped vehicle and speaking to the driver, the officer
did not note any odor of alcohol. The officer ran a motor vehicle as well
as license check, both of which checked out. The officer, noting Sloup’s
nervousness, asked him where he was going. The officer was not satisfied
with Sloup’s answer with respect to why he was traveling the route
of the stop based upon where he indicated he was going. The officer never
sought to conduct a field sobriety test, however, believing there may
be narcotics in the vehicle, he sought consent to search the vehicle,
which Sloup granted. The consent request occurred approximately ten minutes
into the stop. The officer found drug paraphernalia and Sloup was arrested.
On appeal, Sloup alleged that the officer
exceeded the scope of the stop by asking for consent to search the vehicle.
The focus of this claim was the fact that the officer indicated he suspect
driving while under the influence of alcohol or drugs, yet he never sought
to conduct a field sobriety test. The court agreed with Sloup. The court
examined the stop as a “Terry” stop in which the officer had
reasonable suspicion, based upon Sloup’s driving to believe he may
be under the influence. The court pointed out that a “Terry” stop
requires a two-part analysis. First, was the officer justified in making
the stop at the outset, and second, was the duration and scope of the
stop reasonable in relation to that which justified the stop to begin
with. In this review, the court reported that three questions must be
answered: (1) were the questions and the search reasonably related to
that which justified the stop-here suspicion of operating while under
the influence. (2) Did the officer have reasonable suspicion to believe
criminal activity was taking place?; and, (3) Did the questioning or search
unreasonably prolong the search or “change the fundamental nature
of the stop? ”
The court concluded that the officer
here changed the fundamental nature of the stop by seeking consent. This
changed the stop from an operating under the influence based stop to one
that sought evidence of narcotics possession. The court reasoned that
if the officer had a continued belief that Sloup was operating under the
influence, he would have conducted the field sobriety test.
Under this holding from Illinois, which
was based upon the United States Constitution, an officer would only be
able to ask for consent if there was a reasonable belief that the search
would turn up evidence for that offense which justified the stop. It should
be noted that this holding is more restrictive than cases from most states
and the federal courts.
Until such time as the United States
Supreme Court more clearly defines consent searches, law enforcement agencies,
prosecutors, and individual officers must pay close attention to the local
interpretation on consent searches. Constitutionally, a person need not
be told of their right to refuse consent, and consent need not be obtained
in writing, however, where an officer informs a person of their right
to refuse and/or obtains consent in writing, the voluntariness of the
consent will be more easily established.
i Bureau of Justice Statistics, “Study of Police
Contacts 2002,” published 2005.
ii Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
iii United States v. Caballes, 543 U.S. ____(2005).
iv State v. Campbell, 2005 Fla. App.LEXIS 14806 (Ct. App. Florida 4th Dist. 2005).
v Salmeron v. State, 614 S.E. 2d 177 (Ct. App. GA. Fulton County 2005).
vi State v. Sloup, 834 N.E. 2d 995 (App. Ct. ILL. 2nd Dist. 2005).
Jack Ryan is an attorney in Rhode Island, a graduate Juris Doctorate,
Cum Laude Suffolk University Law School. Jack has 20 years police experience
as a police officer with the Providence Police Department, Providence, RI.
Jack’s law degree and experience as a police officer gives
him the unique perspective of the legal and liability issues.
Jack is a former adjunct faculty member at Salve Regina University
and lectures frequently throughout the United States.
Jack is a Standing
Committee Member of the Homicide
Cold Case Review board.