Thursday, December 5, 2013

Idaho: Submission can be begruding, and also, ride a motorcycle if you don't want the cops rummaging through your things

The Fourth Circuit just released an opinion recognizing that "consent" to a search is.. pretty much never actually consent.  You can read it here.  Or you can read a more entertaining summary of it here.

Meanwhile, today the Idaho Court of Appeals released this decision overruling suppression because... well... perhaps our judges are not very street saavy?  They certainly don't seem to have any experience with dealing with the police or driving a car with a trunk.

The Court had the following facts as found by the DJ:

Here, the officers returned [Petersen’s] license and accompanying information, 
and also asked [him] if he was “good to go.” [Petersen] actually did think he was 
free to go, which is clearly evidenced by the fact that he acknowledged that he 
was good to go, shook the officer’s hands, and began to leave before the officers 
reinitiated questioning. While there is no indication as to tone of the exchange, 
the officers’ testimony indicates that the continued questioning was not 
immediately directed toward accusing [Petersen] of a crime, or inquiring about his 
nervousness--instead, officers continued to ask about the purpose of [Petersen’s] 
trip, and his intended destination . . . . [A] reasonable person would have believed 
he or she was at liberty to ignore the police presence and go about his or her 
business once the officers terminated their questioning, returned [Petersen’s] 
documentation, and asked if he was good to go. 

A review of the totality of the circumstances shows that, when Petersen was questioned the 
second time, the initial traffic stop had terminated and a consensual encounter had begun. 
Petersen had been issued a warning citation, his license and other information were returned to 
him, and he was asked, “are you good to go?” indicating the initial stop had terminated and he 
was free to leave.

Petersen argues that, despite these facts, a reasonable person would not have 
felt free to leave and disregard the officer’s renewed questioning after being ordered out of the 

vehicle and while the officers’ overhead lights remained on.

The Court finds:

The officer’s indication to Petersen that he was free to leave included implicit permission to 
return to his vehicle Petersen also argues that a reasonable person would not have felt free to leave under the circumstances here because of the location of the stop and the presence of the two uniformed officers. However, the location of the stop is not dispositive. Moreover, a seizure does not occur simply because a police officer asks if the individual is willing to answer some questions or puts forth questions if the individual is willing to listen. Florida v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983); Ray, 153 Idaho at 568, 286 P.3d at 1118. This was the case here. When one of the officers asked Petersen, “are you good to go?” Petersen replied 
that he was and shook both officers’ hand.2 Petersen then indicated that he understood he was 
free to leave by turning to leave and heading toward his vehicle. When one of the officers asked him if he would answer a few more questions, Petersen voluntarily returned and was willing to converse further with the officer. As a result, the district court did not err in finding that the officers did not unreasonably or unlawfully extend the traffic stop because the questioning occurred during a consensual encounter. 

But it gets better!  After finding that your average person feels free to tell the cops he's too busy and leave when there are two of them, their lights are on, and they're suddenly getting weirdly interested in who you are and what you're doing, the Court tells us things we should never do because evidently they show we are drug dealers:
1.Drive from Minnesota to Seattle for a two-day visit with a recent acquaintance
2. with a very clean car for such a long trip
3. with caffeinated soda in view (because only drug dealers have to keep awake)
4. and cellphones (because only drug dealers have those)
5. and an air freshner (because drug dealers have to mask all that drug smell)
6. and blue jeans (I mean, sure, he has a trunk, but JEANS in the CAR?? DRUG DEALER!!!)

I disagree.  And I think any normal person would, so long as you didn't tell them what they were really deciding is whether a drug courier goes free.  And therein lies the rub.  It would be interesting, I think, to see how judges would rule if we never told them what the crime was until after they had concluded there was no constitutional violation.


  1. "Don't ever talk to the police" is much easier said from the comfort of an armchair in your own living room. Things change when you're outside and your lawyer and video camera are hours away. I wonder if the judge understands the difference in a police officer's attitude when he's on camera and dealing with a lawyer or judge. I'm betting not.

    1. I don't think it even matters if the cop is super friendly. If the guy with a gun and a badge starts asking you questions, you answer. People don't say, "sorry, no time," to the police. At least I've never seen it done.