D.Utah: [Casting aside all the fictions other courts apply,] The defendant had no way of believing stop ended or he could ever leave

Defendant was never given any indication the stop was over to be able to know that he was ever free to leave; indeed, no reasonable person would leave. The consent was invalid. “Because a videotape is present in this case, the court should view ‘the facts in the light depicted by the videotape.’ Scott v. Harris, 550 U.S. 372, 381-82 (2007).” United States v. Conte, 2012 U.S. Dist. LEXIS 16470 (D. Utah February 8, 2012):

Because Conte had been given no warning or citation, he could not know the traffic stop had ended. See Guerrero-Espinoza, 462 F.3d at 1310. “More to the point, a reasonable person in [Conte’s] position would not have felt free at that time to decline to answer the trooper’s questions and instead leave.” Id. Indeed, under the circumstances, “May I ask you some additional questions?” is similar in nature to “May I see your license and registration?” Although worded as questions, circumstances can change them into polite commands. “No one … after having been stopped by [an] officer for a perfectly legitimate reason … can reasonably view himself or herself as free to leave,” Sandoval, 29 F.3d at 542, when an officer has failed to inform the driver about the outcome of the stop. This is particularly so when leaving would cause injury to an officer due to the officer’s contact with the driver’s vehicle. The court, therefore, concludes that Conte was unlawfully detained after Trooper Jensen returned his documents to him.

. . .

As stated before in this case, Trooper Jensen maintained a calm, professional demeanor throughout the encounter. As in McSwain, however, he leaned into the vehicle and rested on the door. Although the court does not find that Trooper Jensen did this in an effort to intimidate Conte, his actions, combined with failing to inform Conte the stop had concluded, suggest Conte’s consent was not voluntary. Furthermore, Conte’s consent was given less than a minute after the illegal detention and there were no intervening circumstances. These “factors weigh heavily against finding the taint cleansed.” Id. Finally, with respect to the third factor, when Trooper Jensen engaged Conte in additional conversation he had no articulable suspicion of criminal activity. Instead, his questions were designed to see if something would turn up. The questions were purposeful and devised to see if Conte would implicate himself. Based on the totality of these facts, the court concludes that the taint of the unlawful detention had not been removed and Conte’s consent was invalid. Accordingly, the court hereby suppresses the evidence found during the search.