W.D.Tex.: Refusal to consent cannot be a factor in reasonable suspicion

Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010):

Refusal to consent to a search does not provide reasonable suspicion to justify a stop or continued detention. United States v. Machuca-Barrera, 261 F.3d 425, 435 n.32 (5th Cir. 2001) (citing United States v. Hunnicutt, 135 F.3d 1345, 1350-51 (10th Cir. 1998) (“[I]t would make a mockery of the reasonable suspicion and probable cause requirements … if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.”)); see also Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995) (holding that refusal to consent to search “cannot support a finding of reasonable suspicion”); United States v. Gordon, 917 F. Supp. 485 (W.D. Tex. 1996) (holding officers lacked reasonable suspicion to continue to detain the defendant’s vehicle following the defendant’s refusal to consent to search his vehicle and that the defendant’s refusal to consent to a search of his vehicle could not be turned, by the officers, into a basis for the necessary level of reasonable articulable suspicion).

Furthermore, at one point Trooper Allick told Defendant that he respected Defendant’s Fourth Amendment rights. Video at 16:50. However, one cannot respect another’s Fourth Amendment rights and simultaneously punish that same person for exercising them. Had the other reasons Trooper Allick claimed after the fact been the true basis for any suspicion he may have had, he would have cited those reasons when explaining the situation during the stop on April 14, 2010. Instead, he referred only to Defendant’s exercise of his Fourth Amendment right to refuse consent, and he did so on six different occasions. Accordingly, this Court finds those later-mentioned reasons suspect.

. . .

In light of the totality of the circumstances and the evidence before it, the Court holds that Trooper Allick lacked an articulable factual basis to suspect wrongdoing. His continued detention of Defendant therefore violated Defendant’s Fourth Amendment rights.

Note: The court here discounted nervousness based on the video of the stop.