Upon completion of traffic stop and return of papers to the driver, the officer reinitiated conversation with the driver and then the passenger, the owner of the vehicle, to question him about their travel plans. United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. September 15, 2006) (2-1):<\/p>\n
In this case, Trooper Peech testified, and the district court found, that the traffic stop ended after the trooper returned Cipres’s driver’s license, gave him the warning and opened the patrol car door so Cipres could get out of the patrol car and return to the minivan. Under these circumstances, arguably a reasonable person in Cipres’s position might have believed he was free to leave. See Bradford,<\/em> 423 F.3d at 1159. But there is no evidence that a reasonable person in Guerrero’s position would have believed he was free to leave. While the trooper had already returned Cipres’s driver’s license and had completed writing Cipres a warning, there is no evidence that Guerrero knew that. Those events had all occurred in the patrol car, out of Guerrero’s presence; Guerrero had remained in the minivan throughout the traffic stop. Certainly Guerrero could see that Trooper Peech eventually allowed Cipres to get out of the patrol car, after the trooper had spoken with Guerrero about the van’s insurance. But Cipres did not return to the van; instead, it would have appeared to a reasonable person in Guerrero’s position that the trooper detained Cipres further, this time at the back of the van, asking him further questions. Although Cipres consented to this further questioning, there is no evidence that Guerrero was aware of that. And when Trooper Peech then approached Guerrero also to ask him further questions, Cipres remained standing at the back of the van. Although the trooper testified that he had not told Cipres to remain outside the minivan and, as far as the trooper was concerned, Cipres could have returned to the van at any time, there is again no evidence that Guerrero was aware of that, either.<\/p>\n
What a reasonable person in Guerrero’s position would have known is that, as the minivan’s owner, he had been unable to provide Trooper Peech with any proof of insurance for the minivan and he had given the trooper only what can be described as a fairly lame story about why Guerrero could not produce any proof of insurance. Despite the fact that the trooper had previously returned the van’s registration to Guerrero, there is no evidence from which Guerrero could have believed that the trooper was satisfied with Guerrero’s insurance story. So, as far as Guerrero knew, the traffic stop had not yet ended. More to the point, a reasonable person in Guerrero’s position would not have felt free at that time to decline to answer the trooper’s questions and instead leave. Yet, because Trooper Peech had concluded the traffic stop, unbeknownst to Guerrero, the trooper could no longer lawfully detain Guerrero. Guerrero’s decision to answer Trooper Peech’s additional questions, therefore, cannot be considered consent to prolong the traffic stop; rather, it was the product of Guerrero’s unlawful detention. (footnote omitted)<\/p><\/blockquote>\n
Comment:<\/em><\/strong> This is a significant case–the court recognizes the reality of traffic stops and when a citizen should or could actually think he or she can leave without consequence. First, the officer says “you’re free to go; but wait, can you answer a few more questions?” That is not free to leave as far as the average person is free to leave. The dissent depends upon exploiting the average person’s never knowing when he or she is free to leave.<\/p>\n
Finally, our cases should promote cooperation between police and citizens. Absent a show of force, there is no good reason to add another layer of complexity to our Fourth Amendment traffic stop jurisprudence, especially in cases like this one where the district court found consent to additional questioning and the search by both the driver and the passenger. In any event, I fail to see why the Fourth Amendment would compel a per se rule barring consent obtained during the course of a routine traffic encounter.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
b2evGMco.b2evALnk.b2WPAutP Continue reading