IA: Defendant read from an attorney’s card saying “I refuse to consent”; consent finally obtained was involuntary

When defendant was stopped, he read from an attorney’s card saying “I refuse to consent.” He was detained, and when he finally “consented,” it was involuntary. State v. Gogel, 2013 Iowa App. LEXIS 640 (June 12, 2013):

The officer asked [Gogel] if he had anything in the vehicle that he was not supposed to have. [Gogel] answered that he did not. The officer asked if he could search the vehicle. [Gogel] waved his attorney’s card and indicated that he had never had to use it. [Gogel] began to read from the attorney’s card. The officer asked [Gogel] to step out of his car and brought [him] to the rear of his vehicle.

The officer asked [Gogel] to tell him if there was something in the car so that he would not have to call a drug dog down or go about finding it another way. [Gogel] responded that he did not know why the officer would search the vehicle and that he had never been searched for a speeding ticket. The officer asked [Gogel] if he minded if he searched the vehicle. [Gogel] responded that he personally didn’t mind, but he didn’t understand why the vehicle would be searched. The officer responded that they like to periodically search a vehicle. The officer stated, “Oh, but you don’t mind?” [Gogel] again stated that he did not have a problem with it but that he didn’t know why the officer was searching. The officer asked [Gogel] to produce a knife which [he] had acknowledged was on his person.

. . .

We note that Gogel was detained at the time of the consent to search. While bathed in the blue and red strobic show of authority from a police cruiser, Gogel found himself seized as he stood on the side of a public highway after being ordered out of his car by a uniformed and armed officer of the law. In fact, such seizure occurred when he began to read from the attorney’s card “I refuse to consent,” at which point he was interrupted and ordered out of his car. A reasonable person in Gogel’s position would have believed that he was not free to leave. See id. at 782-83. The setting of a traffic stop on a public highway is “inherently coercive.” Id. at 783. Under these circumstances, it is likely Gogel did not feel free to decline to give consent for a search even though the search was unrelated to the purpose of the original stop. See id.

Like Pals, Gogel was never advised that he was free to leave or that he could voluntarily refuse to consent without any retaliation by police. See id. Instead, he was told if he did not consent, a drug dog would be called or the officer would “go about finding it another way then.” Further, like Pals, Gogel was not advised by the officer that he had concluded business related to the stop at the time he asked for consent. See id. In fact, the business related to the stop had not been concluded. The officer still had possession of Gogel’s driver’s license, and he had not yet filled out or issued the speeding ticket. “The lack of closure of the original purpose of the stop makes the request for consent more threatening.” Id.

In light of these factors, we conclude that Gogel’s consent was not voluntary under article I, section 8 of the Iowa Constitution. See id. As the supreme court concluded in Pals: “To conclude otherwise would require us to give too much weight to words spoken by an individual and ignore the surrounding conditions strongly pointing to involuntariness of the consent.” Id.