D.Mont.: A reasonable motorist would not think the stop had ended here just because warning ticket handed over; never told free to go

After the traffic stop was completed and the warning handed over, the officer’s continuing the conversation not a consensual extension of the stop. The officer never said he could leave and then attempted to start the conversation. United States v. Caneo, 2020 U.S. Dist. LEXIS 16814 (D. Mont. Jan. 31, 2020):

The government argues the moment Officer Gilmore handed the driver the written warning, the encounter transitioned from a seizure to a consensual encounter. But in the context of a valid traffic stop, significantly more is required to communicate to a citizen that the stop is officially over and he or she is free to leave. In United States v. Chavez-Valenzuela, the Ninth Circuit held a traffic stop had not transitioned into a consensual encounter when the officer returned the driver’s license and registration because the officer immediately began asking incriminating questions of the driver. 268 F.3d 719, 724-725 (9th Cir. 2001). “A reasonable motorist,” the Ninth Circuit wrote, “—even with license and registration in hand—most likely would not have believed he could disregard the officer’s inquiry and end the conversation.” 268 F.3d at 725.

This case offers a similar situation. Officer Gilmore issued a written warning and asked if the driver had any questions. After being told no, Officer Gilmore immediately asked if there was anything illegal in the vehicle and if he could search it. After being told no twice, Officer Gilmore then asked if he could run his dog around the vehicle, to which the driver stuttered a response before Officer Gilmore pushed “it only takes a second.” At no point after issuing the written warning did Officer Gilmore give any indication the driver and Caneo were free to go. He never said he was finished with them, never told them they could leave, never told them they could say no to his request to search the vehicle. There are simply no facts that would indicate to a reasonable person who had just been validly stopped that the stop was officially over and he or she was free to leave. On the contrary, immediately asking the driver and Caneo if there was anything illegal in the vehicle, if the vehicle could be searched, and if the drug dog could sniff the vehicle, would all indicate to a reasonable person that they were not free to leave after receiving the written warning. The driver and Caneo therefore continued to be seized after authority for the stop ended. The continued seizure was unconstitutional unless Officer Gilmore developed independent reasonable suspicion.

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