After the defendant was told he was free to go, the officer decided to order him out of the car for further questioning, and this was unreasonable. State v. Henderson, 2007 Ohio 2315, 2007 Ohio App. LEXIS 2137 (11th Dist. May 11, 2007):
[*P28] Officer O’Leary’s motive in asking Henderson to exit his vehicle is not controlling. Apart from his motive, O’Leary had probable cause for the initial traffic stop. However, his continued detention and questioning after advising Henderson that he was “free to go” required the existence of reasonable suspicion of ongoing criminal activity. At the time O’Leary told Henderson he was “free to go,” there was no ongoing criminal activity that O’Leary could observe. As the Second Appellate District stated in the case of State v. Retherford:
[*P29] “‘[T]he mere fact that a police officer has an articulable and reasonable suspicion sufficient to stop a motor vehicle does not give that police officer “open season” to investigate matters not reasonably within the scope of his suspicion.'”
[*P30] Instead of simply handing Henderson his citation for expired plates and allowing him to go on his way, O’Leary pursued the items that did not make sense to him and continued with his questioning of Henderson until he got Henderson’s consent to search his vehicle. Thus, the statement to Henderson that he was “free to go” was ephemeral. A reasonable person would not perceive that he was free to go when the officer moves into the next round of questioning with the lights from his patrol vehicle still flashing.
Stop was valid, and the officer recognized defendant as matching the description given by an informant from a drug deal. Defendant consented and it was valid. United States v. Flanders, 2007 U.S. Dist. LEXIS 34723 (S.D. Ga. May 10, 2007).*
Consent to search was granted while the officer was still holding the driver’s license and car rental agreement. The Arkansas Supreme Court found no problem with that. Yarbrough v. State, 2007 Ark. LEXIS 293 (May 10, 2007):
During the course of this encounter, Sgt. Davis determined that he was going to give Yarbrough a warning for the traffic violation; but, before doing so, he asked Yarbrough for his consent to search the vehicle. Yarbrough directed the officer to Guzman, whose name was on the rental contract. Guzman consented to the search approximately sixteen (16) minutes after the initial stop. As of the point in time when Guzman gave his consent to the search, Sgt. Davis had neither returned Yarbrough’s identification papers to him nor given him a copy of the warning.
In Lilley v. State, supra, we viewed the traffic stop as completed after the warning and vehicle documentation were handed to the driver. Likewise, we said in the Sims case that the legitimate purpose of the stop had terminated “after [the officer] handed Sims back his driver’s license and registration, along with a warning for [the traffic offense] ….” Sims v. State, 356 Ark. at 513, 157 S.W.3d at 534. Based on this case law, we cannot say that the circuit court’s ruling is clearly against the preponderance of the evidence.
Nonetheless, Yarbrough asserts that the officer had issued the warning before the search took place, thereby “completing the basis of the traffic stop.” In support of that assertion, he suggests that there was a discrepancy in the officer’s testimony and the report made shortly after the arrest. At the hearing, Sgt. Davis testified that he was in the process of writing the warning before consent was requested and obtained; whereas, his report contained the following sentence: “I ran a check on his license and issued him a warning for his violation.” In rejecting Yarbrough’s discrepancy argument, the circuit judge specifically found the officer’s testimony at the hearing to be credible. In matters of credibility, it is well-settled that this court defers to the circuit judge. Flanagan v. State, 368 Ark. 143, ___ S.W.3d ___ (2006).
Yarbrough also suggests that Sgt. Davis’s irrelevant line of questioning was in and of itself an unreasonable detention. However, that argument was not made below. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005). In any event, we have clearly held that, as part of a traffic stop, a police officer may ask the motorist routine questions during the process of performing a number of routine tasks related to the traffic violation. Laime v. State, supra.
Comment: Lame is right. This had to have been written by a law clerk. Justice Imber’s work is far better than this.
Trial court erred in granting a motion to suppress because of the defendant’s alleged inability to understand English when the record clearly showed that he did. People v. Castro, 159 P.3d 597 (Colo. 2007).*
Failure to object to seizure of evidence prior to its admission at trial is a waiver. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845 (2007).*
There was reasonable suspicion based on immediate information of a crime just occurring, so the stop was valid. State v. Weis, 2007 Ohio 2279, 2007 Ohio App. LEXIS 2116 (3d Dist. May 14, 2007).*
