UT: Refusal of consent does not end stop where there is RS

Defendant’s refusal of consent did not dispel reasonable suspicion nor mandate ending the stop if there is reasonable suspicion. State v. Gomez, 2012 UT App 102, 275 P.3d 1073, 705 Utah Adv. Rep. 32 (2012):

[*P11] To the extent that Gomez is asserting that his refusal to consent to the search ended the investigation as a matter of law, we do not agree. Courts generally hold that refusal to consent cannot establish or—according to some courts—even support reasonable suspicion. … The Tenth Circuit has well stated the rationale of these cases: “If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections. A motorist who consented to a search could be searched; and a motorist who refused consent could be searched, as well.” Santos, 403 F.3d at 1125-26; see also United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998) (“Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine.”).

[*P12] However, the issue here is not whether refusal to consent supports reasonable suspicion, but whether it dispels reasonable suspicion, or at any rate terminates an officer’s attempts to confirm or dispel his or her original reasonable suspicion. On this point, the case law is equally clear. Gomez “cites no case law, and we have found none, that would require [the officer] to ignore all that he had observed and all that he knew up to the moment he asked for consent.” See Leal, 235 F. App’x at 940. Indeed, courts routinely hold post-refusal detentions to be supported by pre-refusal reasonable suspicion under an ordinary totality-of-the-circumstances analysis. … Thus, a brief investigative detention of a suspect who has refused consent, like any other official detention, is lawful to the extent it is supported by reasonable suspicion, and the investigating officer acts diligently to pursue a means of investigation likely to quickly confirm or dispel that suspicion. See Sharpe, 470 U.S. at 686.

[*P13] Nor do we agree with Gomez that, as a factual matter, once he denied consent to search, Officer Speeth “had done all that he could to quickly confirm or dispel his suspicion that Gomez was involved [in] drug trafficking.” Gomez’s own response to the officer’s request suggested a further avenue of investigation. When the officer made the original request, Gomez did not consent, but neither did he categorically refuse consent. He gave a response from which the officer inferred that “some of the other occupants had something incriminating inside the hotel room.” That inference cued up the next logical step in the investigation: determining whether Gomez’s companions would object to a search of the hotel room. When they disclaimed any interest in the room, the officer again approached Gomez. This time, Gomez consented.