N.D.Ohio: Asking for consent while holding a motorist’s DL means he’s not “free to go”

Police often ask for consent, but before asking a motorist for consent in a routine traffic stop, the motorist has to know he or she is free to go. Still holding the license when asking for consent is not “free to go.” United States v. Washington, 2014 U.S. Dist. LEXIS 8002 (N.D. Ohio January 13, 2014):

There is, however, a crucial constitutional predicate to the lawfulness of such routine practices: namely, the person to whom the officers put their questions must feel free to say no and depart. Florida v. Bostick, 501 U.S. 429, 434 (1991) (“Whenever a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.”) (internal citations and quotations omitted); see also Erwin, supra, 155 F.3d at 823 (“[C]onsent is not vitiated merely because the valid suspicion of wrongdoing for which an individual has been stopped proves to be unfounded or does not result in prosecution and the individual is free to go before being asked.”) (emphasis supplied); United States v. McCall, 433 F. App’x 432, 437 (6th Cir. 2011).

. . .

In this case, I find as a matter of fact that the officers had completed all activities incident to the stop, except serving the citation and returning the license, by the time they returned to the defendant’s vehicle. Had they given those items to the defendant at that point, there would be no basis for challenging what happened next.

But Officer Reinhart did not give the defendant the license and citation. He was still holding them when he asked if the officers could search the vehicle. At that point, the officer had abandoned the prosecution of the traffic stop and embarked on a new course of investigation. Under United States v. Everett, 601 F.3d 484, 495 (6th Cir. 2010), this “bespeak[s] a lack of diligence” and, under the totality of circumstances, transformed an ordinary traffic stop into an unreasonable seizure.

The dispositive issues are: 1) did the ensuing questions occur during a period, albeit brief, of unlawful detention, and, if so, whether such detention tainted the defendant’s consent, even if deemed voluntary; and, 2) alternatively, was the totality of the circumstances such as to create coercive pressures rendering his consent involuntary.

Because Officer Reinhart had his license and the ticket, the defendant was not free to leave, and thereby make clear he did not want to continue talking with the officer. No reasonable driver would leave following a traffic stop unless the officer, in effect, has given him leave to do so by giving back his driver’s license and either a ticket or a written or verbal warning.

The tainting effect of keeping the defendant in place by holding onto the license and ticket directly led to Officer Picking’s observation of the bulge and seizure of the firearm. While unable to leave, the defendant agreed to Officer Reinhart’s request to search. This, in turn, led directly to the officer’s instruction, albeit itself otherwise sensible and lawful, to the defendant to get out of the car. The defendant having complied, as he had to, Officer Picking saw the bulge and reached for and took the gun. Thus the taint of not being free to leave when the law allowed the defendant to do so extends to seizure of the weapon. See United States v. Culp, 860 F. Supp. 2d 459, 466-68 (W.D. Mich. 2012) (granting motion to suppress evidence because officer unlawfully prolonged traffic stop which directly led to seizure of contraband).