AK: State constitution bars asking driver for consent in a routine stop without knowing more

Alaska holds that state constitution provides more protection to motorists in traffic stops such that a request for consent without any factual basis for requesting it was unreasonable. Brown v. State, 182 P.3d 624 (Alas. App. 2008):

For the reasons explained in this opinion, we join the state courts that have decided that their state constitutions require greater restrictions on police authority in this situation than the restrictions imposed by the Fourth Amendment to the United States Constitution.

We reject the notion that, as long as a police officer’s questions do not extend the expected temporal duration of a traffic stop, the legal nature of the stop remains unaltered even when an officer questions a motorist about other potential crimes and seeks permission to search the motorist and/or the vehicle. As shown by the facts of the present case, and as shown by the experiences of other states, motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officer’s request for search.

Because of the psychological pressures inherent in the stop, and often because of the motorist’s ignorance of their rights, large numbers of motorists — guilty and innocent alike — accede to these requests.

Moreover, because traffic regulations are so numerous and detailed, most motorists will violate these regulations from time to time. In the present case, for instance, the defendant was stopped because the light illuminating her rear license plate was dirty.

Because the violation of traffic regulations is so frequent, and because motorists who are stopped for traffic infractions often accede to a police officer’s request for permission to search, the Fourth Amendment rules governing traffic stops create the potential risk that law enforcement officers will compromise the privacy of many citizens. These Fourth Amendment rules potentially allow Alaska law enforcement officers to search dozens, and perhaps hundreds, of people and vehicles each day even though the officers lack any grounds to justify these searches.

For these reasons, we hold that the Alaska Constitution imposes greater restrictions on a police officer’s authority to request a motorist’s permission to conduct a search during a routine traffic stop. We conclude that an officer’s questions about other potential crimes, and an officer’s requests for permission to conduct a search, are significant events under the search and seizure provision of the Alaska Constitution, Article I, Section 14. More specifically, we conclude that, under the circumstances presented in this case, the officer conducting the traffic stop was prohibited from requesting Brown’s permission to conduct a search that was (1) unrelated to the basis for the stop and (2) not otherwise supported by a reasonable suspicion of criminality.

Comment: Finally, a court that recognizes the realities of traffic stops and police-citizen encounters. Any court that doesn’t recognize these realities is reading and writing fiction.