{"id":2083,"date":"2009-02-14T09:38:25","date_gmt":"2008-05-15T07:45:21","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-05-15T07:45:21","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2083","title":{"rendered":"Officer properly posed questions to the passenger to dispell his suspicions which led to valid consent"},"content":{"rendered":"

Questions to the passenger were justified by the officer’s suspicions. State v. Funderburg<\/a>, 2008 NMSC 26, 144 N.M. 37, 183 P.3d 922 (April 15, 2008):<\/p>\n

[*31] … As we have made clear, after finding drugs on the passenger, Officer Minter did not immediately turn his attention to Defendant and begin interrogating him as a suspect, as in Patterson<\/em> or Williamson<\/em>, about drugs on his person. He never asked for consent to search Defendant personally, and did not do so until much later in the investigation after his arrest. If the officer had focused prematurely on Defendant as a suspect, then our inquiry today would be different. However, Officer Minter, suspecting that other evidence of the passenger’s criminal act could be found in the car, asked Defendant a single question–whether there was anything in the car<\/em> he needed to know about–before requesting Defendant’s consent to search the car<\/em>. These two simple inquiries were reasonably designed to confirm or dispel Officer Minter’s suspicion about the criminal activity of the passenger, not the driver, and the presence of other contraband in the car. The officer reasonably directed his inquiry at the driver, the one person who presumably would know about the car’s contents and who could provide consent for its search.<\/p>\n

[*32] In weighing the officer’s intrusion on Defendant’s privacy, we should ask ourselves what other actions a reasonable officer would be expected to take under similar circumstances, if not those taken in this instance. Upon developing reasonable suspicion that other drugs or drug paraphernalia might be in the car, based on the passenger’s possession of similar contraband, Officer Minter had other options, but none that would have spared Defendant the risk of an even greater intrusion into his privacy. For example, the officer could have detained the car and conducted his own warrantless search on the basis of some theory of exigent circumstances, though no such theory was raised in this case. The officer could have detained the car, awaiting a warrant or a drug dog, and allowed Defendant to leave, no doubt at Defendant’s considerable inconvenience. The officer could have erred on the side of caution, and simply let the car go, thereby ignoring his suspicions and turning a blind eye to criminal activity. Or, Officer Minter could take the simplest, most direct approach with minimal intrusion on Defendant’s privacy, and ask a brief question about the contents of the car before requesting Defendant’s consent to search the car. Officer Minter chose the last option, and we hold that his choice was constitutionally reasonable under the circumstances.<\/p><\/blockquote>\n

Videotape of defendant’s stop corroborated state’s claim of consent. Serrano v. State, 291 Ga. App. 500, 662 S.E.2d 280<\/a> (2008).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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