Arkansas concludes that questioning about drugs right on the heels of a warning ticket would lead a reasonable person to believe he was not free to leave and suppressed. Bedsole v. State, CACR08-376 (Ark. App. January 7, 2009):
The issue presented is whether a reasonable person in Roger Bedsole’s position would have felt free to ignore State Trooper Condley’s post-traffic-stop questions and proceed on his way. Bedsole was traveling east on I-40 in Pope County when Condley noticed Bedsole’s car cross the fog line onto the shoulder. Condley initiated a traffic stop. Bedsole pulled over and got out of his car to talk to Condley. Bedsole provided his driver’s license, the rental agreement for his car, and answered Condley’s questions. Condley issued Bedsole a warning. The video tape of the stop reveals that, right after receiving the warning, Bedsole began to turn toward his vehicle. At that instant, Condley said “[l]et me ask you a question.” The Trooper asked whether Bedsole had any drugs or weapons in his car. Bedsole said that he did not. Condley then asked to search the car. And Bedsole agreed.
. . .
The circumstances of the Lilley stop and this one were similar, though not identical. The officer asked Lilley to come back to his patrol car, where there was a drug dog in the backseat, and Lilley complied. Lilley, 362 Ark. at 437–38, 208 S.W.3d at 786–87. The officer then ran the appropriate checks, asked Lilley some general questions, and issued a warning. Ibid. Here, Bedsole voluntarily got out of his car and spoke with Trooper Condley near the front of the patrol car. Bedsole remained between the vehicles while Condley ran the appropriate checks and asked him general questions. This record contains no evidence that Condley had a drug dog with him. In sum, the citizen’s location in Lilley presented greater coercive circumstances than in this case.
Trooper Condley then issued Bedsole the warning and, after a moment’s pause, said “[l]et me ask you a question.” Officer Condley testified that he “gave [Bedsole] a warning and handed his driver’s license back and then started talking to him about if he had anything illegal in the vehicle.” 362 Ark. at 438, 440, 208 S.W.3d at 787–88. Bedsole also testified that, after Trooper Condley issued the warning and returned his paperwork, “[h]e never quit talking to me.” The video confirms this testimony. …
This case presents a closer question than Lilley. After considering the totality of the circumstances, however, we conclude that a reasonable person would not have felt free to ignore Trooper Condley’s final questions and proceed on his way. We therefore hold that the post-warning encounter was not consensual. Because the State concedes that Condley did not have reasonable suspicion, the Trooper illegally detained Bedsole. The circuit court should have suppressed all the evidence obtained as a result of that illegal detention. Lilley, 362 Ark. at 445–46, 208 S.W.3d at 792.
(Comment: As I have repeatedly said here, the police-citizen balance always tips toward the police in these cases because courts refuse to recognize the reality that a person is just not free to terminate roadside encounter, get back in a car, and leave. The police know it, and they exploit it. Judges who refuse to recognize it are engaging in legal fiction, just to affirm the trial court’s denial of a suppression motion. The conventional wisdom is that the Arkansas Supreme Court will grant review and probably affirm the trial court in about eight weeks, notwithstanding the thoughtfulness and reputation of the people on the Court of Appeals panel.)
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
