NE: Consent during unreasonable extension of stop not voluntary

The traffic stop was reasonable, but it was unreasonably extended. Defendant’s consent during that period was not attenuated. State v. Thompson, 30 Neb.App. 135 (Sept. 14, 2021):

We turn now to examine the purpose and flagrancy of the misconduct. The purpose and flagrancy of the official misconduct is the most important attenuation factor, as it bears most heavily on the deterrence principle underlying the exclusionary rule. See State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017). Purposeful and flagrant misconduct exists when (1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his or her conduct was likely unconstitutional but engaged in it nevertheless and (2) the misconduct was investigatory in design and purpose and executed ““‘in the hope that something might turn up.’”” Id. at 935, 902 N.W.2d at 113. Courts usually do not deem police misconduct as “flagrant” unless the illegal conduct was engaged in for the purpose of obtaining consent or the police misconduct was calculated to cause surprise or fear. Id. See, also, State v. Gorup, supra (noting other courts have stated that purposeful and flagrant conduct includes fishing expeditions in hope that something might turn up). Officer Hosick’s request for Thompson’s consent to search her vehicle was certainly investigatory in design and purpose without any supporting justification for such an inquiry. The same is also true of his request for Thompson to turn out her pockets. Given there was no reasonable suspicion of unlawful activity afoot, or any concern for officer safety, Officer Hosick’s requests can only be considered a “fishing expedition,” which courts have deemed as purposeful and flagrant conduct. See State v. Gorup, supra. Based upon the record before us, this factor also weighs against attenuation.

In light of the totality of the circumstances, we find that Thompson’s consent to the search of her vehicle and her act of turning out her pockets in response to Officer Hosick’s request were not attenuated from the illegal extension of the traffic stop. The extreme temporal proximity between the illegal extension of the stop and Thompson’s consent to his requests, coupled with the lack of intervening circumstances and Officer Hosick’s purposeful and flagrant conduct, indicate to us that the causal chain between Officer Hosick’s conduct and Thompson’s consent to his requests was not broken. As a result, we find that the district court erred in overruling Thompson’s motion to suppress and admitting at trial the evidence seized from Thompson’s person during the traffic stop.

This entry was posted in Consent, Reasonable suspicion. Bookmark the permalink.

Comments are closed.