DE Super.Ct. holds after a traffic stop consent can’t be sought without RS; otherwise it’s just official harassment

When the traffic stop was over, the officer gratuitously asked for consent to search without any inkling of reasonable suspicion, and the driver consented. The court finds that unreasonable and suppresses. State v. Geist, 2016 Del. Super. LEXIS 594 (Nov. 28, 2016):

The State refers to case law to argue flatly that no reasonable, articulable basis for a search need exist so long as consent is given. One such case is State v. Friend, 2008 Del. Super. LEXIS 533, 2008 WL 9004456. In that case, Judge Silverman wrote a thorough analysis of the present state of the law in a case of consent to search in the course of a simple traffic violation stop, concluding that the search was valid. That decision recognized a significant split of authority among the various state and federal jurisdictions on the topic, noting that Delaware law is not settled, and also noting distinctions of nuance among decisions, leaving an absence of any precisely “on all fours” decision. An example of that would be State v. Babb, 2012 Del. Super. LEXIS 268, 2012 WL 2152080. In that case, then President Judge Vaughn sustained a defendant’s motion to suppress a search based upon roadside consent in a traffic stop position. That case involved a consent given before the violation and defendants ticket had been completed. Hence, this case, as essentially each other case, can be argued to be distinguishable.

In any event, given the fine, factual distinctions among many cases, I find the philosophy expressed in State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002) fairly and reasonably states the applicable analysis:

“Travelers on our State highways should not be subjected to the harassment, embarrassment, and inconvenience of an automobile search following a routine traffic stop unless the officers has at least an articulable suspicion that the search will yield evidence of illegal activity.”

In this case at bar, the entire traffic stop had completed without any articulable suspicion of any kind on the part of the officer. As of that point, when Defendant had no reason to be detained in any manner, the very question asking consent had no basis. Accordingly, the consent obtained was invalid, necessitating a suppression of the evidence found by the officer in his warrantless search of Defendant’s vehicle.

For those reasons, Defendant’s Motion to Suppress is GRANTED.