MO: Threat to call the dogs out and wait 40 minutes during minor traffic stop vitiated any consent

Defendants were stopped in their rental car for touching the white line. The officer issued a ticket and started to walk away, but then asked for consent. When they hesitated, he said that he would call for a drug dog if they did not consent and detain them for 40 minutes. This vitiated their consent. State v. Sund, 215 S.W.3d 719 (2007):

Here, too, considering the totality of the circumstances, a reasonable person in Ms. Sund’s and Ms. Wolfe’s position would not have felt free to leave at the time that they opened the trunk in response to the officer’s demand that if they did not do so he would call the canine unit to come search. It was nearly 11:00 p.m. on a cold night in late February. The two women were traveling alone on an interstate highway running through a rural area of Missouri. Neither was from Missouri, and in fact, Ms. Sund was visiting the United States from Sweden. They had nowhere to go and would have had to abandon their rented car and their possessions if they did leave. The encounter was not consensual, but constituted a detention that was unreasonable because the officer did not have reasonable suspicion of criminal activity.

It was only through Ms. Sund’s illegal detention that the officer was able to gain access to the trunk and its contents. The evidence found in the trunk must, therefore, be suppressed, for “evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree.” State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995). Accord, United States v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006) (passengers in a car illegally stopped can “seek to suppress the evidentiary fruits of that illegal seizure under the fruits of the poisonous tree doctrine”); United States v. Pulliam, 405 F.3d 782, 787 (9th Cir. 2005) (defendant has standing to seek to suppress evidence “that is in some sense the product of his unlawful detention”); United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001) (defendant lacked interest in car “that would enable him to directly challenge the search,” but he could “seek to suppress evidence as the fruit of his illegal detention”).

See Mo. Supreme Court overturns drug conviction of Swedish model.

Malfunctioning headlight stop led officer to ask about whether there were open containers in the vehicle, and defendant replied there weren’t. There was a 12 pack in the backseat with some beer cans missing. The officer asked if he could look, and defendant consented. Meth was found. Trial court’s suppression order reversed. People v. Barker, 369 Ill. App. 3d 670, 867 N.E.2d 1021 (4th Dist. 2007).*

New argument raised in the suppression hearing that was not in the motion was not considered by the trial court, and this was not an abuse of discretion. McKinney v. State, 2007 Tex. App. LEXIS 95 (Tex. App. — Dallas January 9, 2007).*